Lieb v. Bryan

40 A.D.2d 623, 336 N.Y.S.2d 512, 1972 N.Y. App. Div. LEXIS 3912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1972
• Status: Published

Opinion

Order unanimously reversed, with costs, and motion denied. Memorandum: In this action against a dentist for malpractice in the extraction of a tooth, defendant served a third-party complaint in which he stated a cause of action alleging that plaintiff’s attending physician failed properly to prepare plaintiff for the extraction and to advise defendant and third-party plaintiff of this failure. The third-party defendant moved to dismiss the third-party complaint on the ground that the complaint in the primary action charged active negligence alone. Subsequent to Special Term’s dismissal of the third-party complaint, the Court of Appeals in Dole v. Dow Chem. Co. (30 N Y 2d 143, 148-149) re-examined the “ active-passive ” negligence concept, and held that “ where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party. To reach that end there must necessarily be an apportionment of responsibility in negligence between those parties.” Consequently, the motion to dismiss the third-party complaint should be denied. (Appeal from order of Cayuga Special Term dismissing third-party complaint in a malpractice action.) Present — Goldman, P. J., Del Vecchio, Moule and Cardamone, JJ.