Swoboda v. Fontanetta

• Decision Date: 16 September 2015
• Docket Number: 2013-08657, Index No. 8012/10.
• Citation: 17 N.Y.S.3d 50,2015 N.Y. Slip Op. 06804,131 A.D.3d 1042
• Parties: Caroline SWOBODA, et al., appellants, v. Adrian Philip FONTANETTA, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1042
17 N.Y.S.3d 50
2015 N.Y. Slip Op. 06804

Caroline SWOBODA, et al., appellants
v.
Adrian Philip FONTANETTA, etc., et al., respondents.

2013-08657, Index No. 8012/10.

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

Sept. 16, 2015.

17 N.Y.S.3d 51

Kelner & Kelner, New York, N.Y. (Gerard K. Ryan, Jr., of counsel), for appellants.

Hirsch, Britt & Mosè, Garden City, N.Y. (Edgar A. Hirsch III, of counsel), for respondents Adrian Philip Fontanetta and Western Nassau Orthopedic Associates, P.C.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Marshal S. Endick and Judy C. Selmeci of counsel), for respondents Day–Op Center of Long Island, Inc., and United Surgical Partners International.

Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Arshia Hourizadeh and Stefanie M. Miller of counsel), for respondent Ambi Medical Associates, P.C.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

Opinion

131 A.D.3d 1042

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCormack,

131 A.D.3d 1043

J.), entered June 17, 2013, as granted that branch of the motion of the defendant AMBI Medical Associates, P.C., which was for summary judgment dismissing the complaint insofar as asserted against it, the separate motion of the defendants Day–Op Center of Long Island, Inc., and United Surgical Partners International for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the separate motion of the defendants Adrian Philip Fontanetta and Western Nassau Orthopedic Associates, P.C., which was for summary judgment dismissing the complaint insofar as asserted against them.

17 N.Y.S.3d 52

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendant AMBI Medical Associates, P.C., which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof granting that branch of the motion of the defendants Day–Op Center of Long Island, Inc., and United Surgical Partners International which was for summary judgment dismissing the complaint insofar as asserted against the defendant Day–Op Center of Long Island, Inc., and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof granting that branch of the motion of the defendants Adrian Philip Fontanetta and Western Nassau Orthopedic Associates, P.C., which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiffs by the respondents appearing separately and filing separate briefs.

On November 9, 2007, the defendant physician Adrian Philip Fontanetta, who was employed by the defendant Western Nassau Orthopedic Associates, P.C. (hereinafter Western...