Gregory v. Starace , 693 N.Y.S.2d 461 ( 1999 )

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 21, 1998, which denied her motion for leave to vacate a judgment of the same court, entered February 9, 1998, that, upon a ruling granting the motion of the defendant made at the close of the plaintiffs case to dismiss the complaint for failure to prove a prima facie case, dismissed the complaint.

Ordered that the order is affirmed, with costs.

At the close of the plaintiffs evidence at trial, the court granted a motion by the defendant to dismiss the complaint. The plaintiff did not appeal from the judgment entered upon the granting of that motion. Rather, the plaintiff appeals from the court’s denial of her motion to vacate the judgment. However, on the record presented, which does not include a transcript of the trial, it cannot be said that the court improvidently exercised its discretion in denying the plaintiffs motion (see, CPLR 5015). Ritter, J. P., Joy, Altman and Smith, JJ., concur.