Fritze v. Versailles
| Decision Date | 26 February 1990 |
| Citation | 551 N.Y.S.2d 854,158 A.D.2d 669 |
| Parties | Jeanette FRITZE, Appellant-Respondent, v. Narcisse VERSAILLES, Respondent-Appellant, Robert Cestari, Respondent, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Anthony Mallilo, Flushing (Michael J. Paglino, of counsel), for appellant-respondent. Kelly, Rode, Kelly & Burke, Westbury (John D. Kelly and Geoffrey H. Pforr, of counsel), for respondent-appellant.
In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Nahman, J.), dated July 7, 1988, as, upon granting the motion of the defendant Robert Cestari, for summary judgment dismissing the complaint insofar as asserted against him, awarded him $6,968.55 for costs and reasonable attorneys' fees pursuant to CPLR 8303-a, payable by the plaintiff's attorney, and the defendant Narcisse Versailles cross-appeals from so much of the same order as denied his cross motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. ORDERED that the cross appeal is dismissed as abandoned; and it is further, ORDERED that the order is affirmed insofar as appealed from; and it is further, ORDERED that the defendant Robert Cestari is awarded one bill of costs, payable by the plaintiff's counsel personally. A review of the record clearly establishes that this medical malpractice action, even if commenced in good faith, was continued long after the plaintiff's counsel knew that there was no basis to hold the defendant Dr. Robert Cestari at fault for any part of the plaintiff's cause of action and that the action should have been unconditionally discontinued as against him. Thus, the Supreme Court, having properly found that the continuation of this action against Dr. Cestari was frivolous, was mandated to grant Dr. Cestari's application for costs and reasonable attorneys' fees (see, CPLR 8303-a; Mitchell v. Herald Co., 137 A.D.2d 213, 219-220, 529 N.Y.S.2d 602). We find no merit to the plaintiff's other contentions.
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