Lantner v. Miles H. Galin, P. C. ( 1998 )

In an action, inter alia, to recover damages for an alleged breach of contract to perform professional services, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Bellard, J.), dated February 3, 1997, which, inter alia, granted the defendant’s motion for summary judgment dismissing the complaint and denied her cross motion to amend the complaint, and (2) a judgment of the same court, entered thereon May 28, 1997, which dismissed the complaint. The notice of appeal from the order dated February 3, 1997, is deemed also to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The original complaint, couched as an action alleging breach of contract to perform professional services, actually sounds in opthalmologic malpractice and was thus governed by the two and one-half year Statute of Limitations applicable to medical malpractice actions (see, CPLR 214-a). Having been served more than five years after the alleged malpractice, the complaint was properly dismissed as untimely. The court also properly denied the plaintiffs application for leave to amend the complaint to add a cause of action to recover damages for medical malpractice on the same ground (see, CPLR 3025 [b]).

The plaintiff’s remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Altman and Friedmann, JJ., concur.