Djeddah v. Djeddah

83 A.D.3d 590, 920 N.Y.S.2d 908

Opinion

Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 17, 2009, which denied defendant’s motion to renew his prior motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

As plaintiff husband’s action for medical malpractice was voluntarily withdrawn by him without prejudice to plaintiff wife’s claim for loss of consortium, the motion court properly permitted the wife’s claim to proceed. Although dismissal' of the husband’s claims on the merits would mandate dismissal of the wife’s derivative claim (see e.g. Camadeo v Leeds, 290 AD2d 355 [2002]), where, as here, the claims were brought simultaneously and the primary action was voluntarily withdrawn without prejudice, there is no bar to the loss of consortium claim (see Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835 [1992], lv denied 81 NY2d 704 [1993]). Concur—Tom, J.P., Andrias, Friedman and Román, JJ.