Barrett v. N.Y.C. Health & Hosps. Corp.

• Decision Date: 17 May 2017
• Citation: 150 A.D.3d 949,55 N.Y.S.3d 318
• Parties: Marvin Lee BARRETT, plaintiff-respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, defendant third-party plaintiff-appellant; Long Island College Hospital, third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 949
55 N.Y.S.3d 318

Marvin Lee BARRETT, plaintiff-respondent,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, defendant third-party plaintiff-appellant;

Long Island College Hospital, third-party defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2017.

55 N.Y.S.3d 318

DeCorato Cohen Sheehan & Federico, LLP, New York, N.Y. (Joshua R. Cohen and Anthony Lugara of counsel), for defendant third-party plaintiff-appellant.

Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for plaintiff-respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci of counsel), for third-party defendant-respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.

In an action, inter alia, to recover damages for medical malpractice and a related third-party action, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Weston, J.), dated August 10, 2015, as, sua sponte, severed the third-party action from the main action,

55 N.Y.S.3d 319

and denied that branch of its motion which was pursuant to 22 NYCRR 202.21(e) to vacate the note of issue.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, severed the third-party action from the main action is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the defendant third-party plaintiff's motion which was pursuant to 22 NYCRR 202.21(e) to vacate the note of issue is granted.

Beginning on or about December 17, 2010, the plaintiff received medical care from physicians employed at Kings County Hospital Center, which is owned and operated by the defendant third-party plaintiff, New York City Health and Hospitals Corporation (hereinafter NYCHHC). On February 8, 2011, the plaintiff allegedly suffered a blood clot that reached his brain, causing him to have a stroke and sustain injuries.

On April 26, 2012, the plaintiff commenced this action against NYCHHC, inter alia, to recover damages for medical malpractice. During the discovery process, NYCHHC learned that while the plaintiff was being treated at Kings County Hospital Center, he was also being treated for the same medical condition, during the same time period, at Long Island College Hospital (hereinafter LICH). On July 10, 2014, NYCHHC commenced a third-party action...