Timeliness
2. By notice of appeal dated April 4, 2002 (R. 2), plaintiffs timely appealed to the Appellate Division, First Department, from the Order of the Supreme Court, New York County (Bransten, J.), entered on March 18, 2002, which granted Columbia Presbyterian’s motion to dismiss the complaint on the ground of res judicata.
3. By order dated April 29, 2003, a copy of which is annexed hereto as Exhibit AAA along with notice of entry, the Appellate Division, First Department affirmed Supreme Court’s order.
4. The Appellate Division's order was served with notice of entry by mail on May 9, 2003.
5. Since this motion has been served on June 11, 2003, it is timely.
Jurisdiction
Finality
6. Under CPLR 5602(a)(1)(i), the Court of Appeals has jurisdiction to entertain this motion and plaintiff’s proposed appeal. The Appellate Division’s order is a final order which finally determines this action. Siegel, New York Practice, §527 at 363 (3d Ed. 1998); see also, Karger, The Powers of the New York Court of Appeals, §11 at 48; §12 at 53-59 (3d Ed. 1997).
7. Moreover, since the Appellate Division’s order was
unanimous, it is not appealable as of right under CPLR 5601(a) and leave to
appeal under CPLR 5602(a)(1)(i) must first be sought and obtained.
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