Horn v. North Shore University Hospital

—In an action to recover damages for medical malpractice and lack of informed consent, the defendants appeal (1) from an order of the Supreme Court, Queens County (Price, J.), dated June 17, 2002, which denied their cross motion to strike the note of issue and dismiss the complaint pursuant to CPLR 3216 and (2), as limited by their brief, from so much of an order of the same court dated August 26, 2002, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated June 17, 2002, *635is dismissed, as that order was superseded by the order dated August 26, 2002, made upon reargument; and it is further, Ordered that the order dated August 26, 2002 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

Contrary to the defendants’ contentions, the Supreme Court providently exercised its discretion in denying their motion, inter alia, to dismiss the complaint pursuant to CPLR 3216. In light of the confusion surrounding the apparent adjournment of the scheduled hearing on the defendants’ motion prior to which the plaintiff filed her note of issue, and the lengthy interruption in the prosecution of this action resulting from the death of the plaintiff’s decedent, the Supreme Court providently concluded that dismissal was unwarranted. Florio, J.P., S. Miller, Friedmann, Townes and Mastro, JJ., concur.