Opinion
June 10, 1991
Appeal from the Supreme Court, Westchester County (Facelle, J.).
Ordered that the order is affirmed, with costs.
The plaintiff allegedly lost the vision in his right eye as a result of negligent dental and medical treatment he received in November of 1986. The appellant Dr. Leslie Cheifetz, an oral surgeon, removed the plaintiff's severely decayed maxillary right first molar. The plaintiff had some swelling on the side of his nose and under his right eye at the time. When the swelling worsened the following day, Dr. Cheifetz referred the plaintiff to the respondent Yonkers General Hospital (hereinafter Yonkers General) for treatment. The plaintiff's condition continued to deteriorate and he eventually lost the vision in his right eye.
The plaintiff commenced this malpractice action against Dr. Cheifetz, Yonkers General and a number of the other doctors who treated him. Yonkers General cross claimed against Dr. Cheifetz for contribution. A stipulation of discontinuance was entered into between the plaintiff and Dr. Cheifetz. Dr. Cheifetz then moved for summary judgment dismissing the cross claim asserted by Yonkers General insofar as asserted against him. Dr. Cheifetz claimed that as a successive tortfeasor, Yonkers General could not maintain a contribution claim against him. The Supreme Court denied the motion, finding that because it could not be determined as a matter of law that the injury was divisible among the prior and successor tortfeasors, Dr. Cheifetz and Yonkers General would be jointly and severally liable. We agree.
The liability of an independent and successive tortfeasor is generally limited to separate injuries or the aggravation caused by his conduct (see, Ravo v Rogatnick, 70 N.Y.2d 305, 310; Suria v Shiffman, 67 N.Y.2d 87, 98; Derby v Prewitt, 12 N.Y.2d 100; Dubicki v Maresco, 64 A.D.2d 645, 646) so that a claim for contribution by a subsequent tortfeasor against a prior tortfeasor is not available (Kalikas v Artale, 124 A.D.2d 645; Zillman v Meadowbrook Hosp. Co., 45 A.D.2d 267, 270-271; see also, Bergan v Home for Incurables, 75 A.D.2d 762; Pezzella v Catholic Med. Center, 52 A.D.2d 596). However, where the plaintiff's injury is such that it is incapable of a reasonable or practicable division or allocation between the tortfeasors, the focus shifts to the relative degree of fault of the multiple tortfeasors and contribution becomes appropriate (CPLR 1401; Ravo v Rogatnick, supra; Contino v Roberts Health Spa, 125 A.D.2d 437; Helmrich v Lilly Co., 89 A.D.2d 441; Wiseman v 374 Realty Corp., 54 A.D.2d 119; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 1401.11; McLaughlin, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C1401:3, at 362-363).
On the record before us, it cannot be said as a matter of law that the plaintiff's injury is capable of any reasonable or practicable division or allocation among the prior and successive tortfeasors. Accordingly, Yonkers Hospital may properly maintain a cross claim for contribution against Dr. Cheifetz (see, CPLR 1401; Contino v Roberts Health Spa, supra; Helmrich v Lilly Co., supra; Wiseman v 374 Realty Corp., supra). Kunzeman, J.P., Kooper, Sullivan and Lawrence, JJ., concur.