Opinion
Decided July 2, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Paul J. Baisley, J.
Henry M. Grubel for appellant.
Robert N. Schutz and James C. Brady for respondents.
MEMORANDUM.
The order of the Appellate Division, insofar as it pertains to Abraham Cohen, Eric Kane, and Leon Finkelstein, and Cohen, Kane Finkelstein, should be affirmed, with costs. It was not an abuse of discretion as a matter of law to dismiss the complaint. Plaintiff failed to submit an affidavit of merit in opposition to defendants' motion for summary judgment ( Erwin Pearl, Inc. v Burroughs Corp., 62 N.Y.2d 1031; Smith v Lefrak Organization, 60 N.Y.2d 828). It is therefore unnecessary to consider the question of the application of CPLR 2005 (L 1983, ch 318) ( Smith v Lefrak Organization, supra).
Finally, we note that no final order has been entered against Brookhaven Memorial Hospital, and the appeal, insofar as it has been taken against this party, must be dismissed (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 20, pp 82-83).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order, insofar as it pertains to defendants Cohen, Kane and Finkelstein, and the defendant partnership, affirmed, with costs, and appeal as against defendant Brookhaven Memorial Hospital Medical Center dismissed, without costs, in a memorandum.