Ahearn v. Arvan

2 A.D.3d 469, 767 N.Y.S.2d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2003
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the defendant Peter J. Periconi appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 5, 2003, which denied his motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

It is well established that claims of medical malpractice and claims for services by health care providers are inexorably intertwined (see Blair v Bartlett, 75 NY 150 [1878]; Tantillo v Giglio, 156 AD2d 664 [1989]). Further, it is well settled that a determination adverse to the patient in an action to recover fees for the rendering of professional services precludes the commencement of a malpractice action with regard to the same services (see Harris v Stein, 207 AD2d 382 [1994]). Thus, the Supreme Court improperly denied the defendant’s motion to dismiss this action based upon an arbitration award in his favor for fees for professional services rendered to the plaintiff Michael Ahearn (see Harris v Stein, supra). McGinity, J.P., Luciano, Schmidt and Rivera, JJ., concur.