DeFelice v. English

• Decision Date: 15 November 1977
• Citation: 91 Misc.2d 1109,399 N.Y.S.2d 417
• Parties: John DeFELICE, an infant under the age of 14 years by his father, Arthur DeFelice, Plaintiffs, v. Dr. Howard A. ENGLISH, Defendant. Dr. Howard A. ENGLISH, Third-Party Plaintiff, v. ST. JOHN'S EPISCOPAL HOSPITAL, Third-Party Defendant.
• Court: New York Supreme Court

Page 417

399 N.Y.S.2d 417

91 Misc.2d 1109

John DeFELICE, an infant under the age of 14 years by his father, Arthur DeFelice, Plaintiffs, v. Dr. Howard A. ENGLISH, Defendant.

Dr. Howard A. ENGLISH, Third-Party Plaintiff, v. ST. JOHN'S EPISCOPAL HOSPITAL, Third-Party Defendant.

Supreme Court, Trial Term, Kings County, Part 10.

Nov. 15, 1977.

Corcoran, Amabile & Cowin, Brooklyn, for third-party defendant, St. John's Episcopal Hospital.

Kramer, Dillof & Tessel, New York City, for plaintiffs, John DeFelice, et al.

Anthony L. Schiavetti, New York City, for defendant & third-party plaintiff, Dr. Howard A. English.

DECISION AND ORDER

JOHN A. MONTELEONE, Justice.

This is a motion by the third-party defendant, St. John's Episcopal Hospital, for summary judgment dismissing the third-party plaintiff's complaint of Dr. Howard A. English.

A prior action instituted by the plaintiffs against the third-party defendant hospital resulted in a jury verdict in favor of the hospital.

The subject matter of the first trial and the present actions is medical malpractice. The pleadings indicate that the infant plaintiff contended amongst its allegations of malpractice against the hospital that it failed to intravenously feed him in accordance with good and accepted hospital standards and practice. With respect to the defendant doctor, the infant plaintiff contends amongst other allegations, his failure to properly diagnose and treat.

Dr. English's bill of particulars in the third-party action alleges that the hospital failed to properly notify him of the infant plaintiff's condition and in failing to take proper steps to have avoided the injuries.

During the argument of this motion, the Court was informed that Dr. English did not testify in the action of the plaintiffs against the hospital, and that the jury verdict in favor of the hospital was a general verdict not accompanied by special findings.

The issue to be decided herein is whether Dr. English is precluded from seeking indemnification and/or apportionment from the third-party defendant hospital because the latter received a verdict in its favor against the plaintiffs.

It is regrettable from a legalistic point of view that Dr. English was not sued by the plaintiffs herein in the first instance or that the hospital did not implead Dr. English therein. Accordingly, neither res judicata nor collateral estoppel is applicable. This motion does not affect the rights of the plaintiffs but solely those of the...