Charles v. Long Island College Hospital

Appellate Division of the Supreme Court of New York

Charles v. Long Island College Hospital

47 A.D.3d 665, 850 N.Y.S.2d 173

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 2008

StatusPublished

This text of 47 A.D.3d 665 (Charles v. Long Island College Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Charles v. Long Island College Hospital, 47 A.D.3d 665, 850 N.Y.S.2d 173 (N.Y. Ct. App. 2008).

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Opinion

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).

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 [1982]; see also Gajdos v Haughton El., 109 AD2d 729 [1985]; Jacobs v Zurich Ins. Co., 53 AD2d 524 [1976]). 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 [1999]; see also Cogan v Madeira Assoc., 1 AD3d 1066 [2003]; Nickerson v City of New York, 309 AD2d 588 [2003]; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233, 234 [2002]; Martinez v One Plus [666]*666Rental Sys., 247 AD2d 594 [1998]; Lewis v Borg-Warner Corp., 35 AD2d 722 [1970]).

The remaining contention of AFMSM is without merit. Skelos, J.P., Santucci, Lifson and Carni, JJ., concur.

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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).

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 [1982]; see also Gajdos v Haughton El., 109 AD2d 729 [1985]; Jacobs v Zurich Ins. Co., 53 AD2d 524 [1976]). 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 [1999]; see also Cogan v Madeira Assoc., 1 AD3d 1066 [2003]; Nickerson v City of New York, 309 AD2d 588 [2003]; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233, 234 [2002]; Martinez v One Plus [666]*666Rental Sys., 247 AD2d 594 [1998]; Lewis v Borg-Warner Corp., 35 AD2d 722 [1970]).

The remaining contention of AFMSM is without merit. Skelos, J.P., Santucci, Lifson and Carni, JJ., concur.

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47 A.D.3d 665, 850 N.Y.S.2d 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-v-long-island-college-hospital-nyappdiv-2008.

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