Samson v. Fleischer

282 A.D.2d 595, 722 N.Y.S.2d 915, 2001 N.Y. App. Div. LEXIS 3817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 2001
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Patterson, J.), dated October 7, 1999, which granted the motion of the defendant Arie Fleischer, and the separate motion of the defendants Anup Gheewala and Methodist Hospital of Brooklyn, for summary judgment dismissing the complaint insofar as asserted against them, and (2) an order of the same court, dated November 12, 1999, which granted the motion of the defendant Helen Cutler pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her.

Ordered that the order dated October 7, 1999, is modified by deleting the provision thereof granting the motion of the defendant Arie Fleischer which was for summary judgment dismissing the complaint insofar as asserted against him and substituting therefor a provision denying that motion; as so modified, the order is affirmed; and it is further,

Ordered that the order dated November 12, 1999, is affirmed; and it is further,

Ordered that the respondents Helen Cutler, Anup Gheewala, and Methodist Hospital of Brooklyn are awarded one bill of costs payable by the respondent Arie Fleischer.

There are issues of fact requiring the denial of summary judgment as to the defendant Fleischer. However, the Supreme Court properly found that the plaintiffs failed to satisfy their burden of proving, by preponderating evidence, that jurisdiction over the defendant Helen Cutler had been obtained (see, Frankel v Schilling, 149 AD2d 657; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135).

Finally, the Supreme Court properly found that the defendants Anup Gheewala and Methodist Hospital of Brooklyn were entitled to summary judgment (see, Campbell v Stevens Hosp., 118 AD2d 988; Filippone v St. Vincent’s Hosp. & Med. Ctr., 253 AD2d 616; Hill v St. Clare’s Hosp., 67 NY2d 72; Tuzeo v Hegde, 172 AD2d 747). Santucci, J. P., Florio, H. Miller and Schmidt, JJ., concur.