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Charles v. Long Island

Appellate Division of the Supreme Court of New York, Second Department
Jan 15, 2008
47 A.D.3d 665 (N.Y. App. Div. 2008)

Opinion

No. 2006-09099.

January 15, 2008.

In an action to recover damages for medical malpractice and wrongful death, the defendant third-party plaintiff/second third-party plaintiff appeals from an order of the Supreme Court, Kings County (Rivera, J.), dated August 15, 2006, which granted that branch of the motion of the third-party defendant which was to dismiss the third-party complaint pursuant to CPLR 3211 (a) (8), and granted that branch of the separate motion of the second third-party defendants which was to dismiss the second third-party complaint pursuant to CPLR 3211 (a) (8).

McAloon Friedman, P.C., New York, N.Y. (Timothy J. O'Shaughnessy and Gillian Fisher of counsel), for defendant third-party plaintiff/second third-party plaintiff-appellant.

Whiteman Osterman Hanna LLP, Albany, N.Y. (Joel L. Hodes and John P. Calareso, Jr., of counsel), for third-party defendant-respondent.

Garbarini Scher, P.C., New York, N.Y. (William D. Buckley and William Scher of counsel), for second third-party defendants-respondents.

Before: Skelos, J.P., Santucci, Lifson and Carni, JJ.


Ordered that the order is affirmed, with one bill of costs payable by the defendant third-party plaintiff/second third-party plaintiff to the third-party defendant and the second third-party defendants appearing separately and filing separate briefs.

As conceded by the defendant third-party plaintiff/second third-party plaintiff, AFMSM, Inc., sued herein as Atlantic Hemodialysis Center (hereinafter AFMSM), the plaintiff failed to properly serve it with the summons and complaint ( see e.g. De Candia v Hudson Waterways, 89 AD2d 506, 507; see also Gajdos v Haughton El., 109 AD2d 729; Jacobs v Zurich Ins. Co., 53 AD2d 524). Therefore, contrary to AFMSM's contention, the Supreme Court properly granted those branches of the separate motions of the third-party defendant New York Dialysis Services, Inc., and the second third-party defendants Bio-Medical Applications of New York, Inc., and FMS New York, Inc., which were to dismiss the third-party complaint and the second third-party complaint, respectively ( see Prigent v Friedman, 264 AD2d 568, 569; see also Cogan v Madeira Assoc., 1 AD3d 1066; Nickerson v City of New York, 309 AD2d 588; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233, 234; Martinez v One Plus Rental Sys., 247 AD2d 594; Lewis v Borg-Warner Corp., 35 AD2d 722).

The remaining contention of AFMSM is without merit.


Summaries of

Charles v. Long Island

Appellate Division of the Supreme Court of New York, Second Department
Jan 15, 2008
47 A.D.3d 665 (N.Y. App. Div. 2008)
Case details for

Charles v. Long Island

Case Details

Full title:BERNADELLE CHARLES, Plaintiff, v. LONG ISLAND COLLEGE HOSPITAL et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 15, 2008

Citations

47 A.D.3d 665 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 218
850 N.Y.S.2d 173

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