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.