Macari v. Parsons Hospital

26 A.D.2d 584, 271 N.Y.S.2d 1009, 1966 N.Y. App. Div. LEXIS 3890

Opinion

In an action to recover damages inter alia for medical malpractice, defendant Parsons Hosiptal appeals from an order of the Supreme Court, Queens County, entered February 25, 1966, which denied its motion to amend its answer so as to assert a cross claim against the three defendant physicians (CPLR 3011, 3025). Order .reversed and motion granted, with one bill of $10 costs and disbursements. The proposed amended answer (containing the cross claim) printed in the record on appeal shall be deemed to have been served as the defendant hospital’s second amended answer; the time to answer the cross claim is extended until 20 days after entry of the order hereon. In our opinion, the cross claim sufficiently alleges a claim of common-law indemnity against the defendant physicians. If plaintiff recovers damages against the defendant hospital based on the negligence of the defendant physicians as its servants, the hospital would be entitled to indemnification (Bing v. Thunig, 2 N Y 2d 656; Opper v. Tripp Lake Estates, 274 App. Div. 422, affd. 300 N. Y. 572; Hollant v. North Shore Hosp., 24 Misc 2d 892, affd. 17 A D 2d 974). Plaintiff’s complaint contains allegations both of active and passive negligence on the part of the defendant hospital. Prior to trial it cannot be foretold upon which theory of negligence plaintiff may recover. Consequently, the sufficiency of the cross claim can best be determined at the trial (Lipsman v. Warren, 10 A D 2d 868; Donnelly v. Rochester Gas & Elec. Corp., 21 A D 2d 740). Christ, Acting P. J., Rabin, Hopkins and Benjamin, JJ., concur.