Tenuto v. Lederle Laboratories

• Decision Date: 02 December 1996
• Citation: 650 N.Y.S.2d 770,234 A.D.2d 284
• Parties: Dominick TENUTO, et al., Plaintiffs, v. LEDERLE LABORATORIES, etc., Defendant-Respondent, Leroy L. Schwartz, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 770

650 N.Y.S.2d 770

234 A.D.2d 284

Dominick TENUTO, et al., Plaintiffs, v. LEDERLE LABORATORIES, etc., Defendant-Respondent Leroy L. Schwartz, Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 2, 1996.

Heidell, Pittoni, Murphy & Bach, P.C., New York City (Katharine Demgen, of counsel), for defendant-appellant.

Donovan Leisure Newton & Irvine, New York City (Charles W. Gerdts III, Diana L. Weiss, and David S. Brosgol, of counsel), for defendant-respondent.

Edelman & Edelman, P.C., Brooklyn (Sandra D. Janin and Martin W. Edelman, of counsel), for plaintiffs.

Before MANGANO, P.J., and ROSENBLATT, SULLIVAN and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Leroy L. Schwartz appeals from an order of the Supreme Court, Richmond County (Amann, J.), dated June 28, 1995, which denied his motion for summary judgment dismissing the cross claim of the defendant Lederle Laboratories. Justice Joy has been substituted for the late Justice Hart (see, 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law, with one bill of costs payable to the defendant Leroy L. Schwartz, the motion is granted, and the cross claim is dismissed.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff-parents, when exposed to a "live polio virus * * * contained in the excrement of their infant daughter" (Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 207 A.D.2d 541, 616 N.Y.S.2d 391). It is undisputed that the defendant Dr. Leroy L. Schwartz administered an oral, live-virus, polio vaccine, Orimune, which was manufactured by the defendant Lederle Laboratories, to the plaintiffs' infant daughter. The plaintiff-father contracted paralytic poliomyelitis within three weeks after the second administration of the vaccine. The action by the plaintiff-mother is a derivative one for loss of services. The plaintiffs alleged that they were injured as a result, inter alia, of the defendant physician's failure to inform the plaintiffs that they might contract paralytic poliomyelitis through contact with their daughter's excrement, and the defendant manufacturer's failure to provide adequate package warnings.

This matter was previously before this Court on the plaintiffs' appeal from an order granting the motion of the defendant Dr. Schwartz for summary judgment dismissing the complaint insofar as it was asserted against him on the theory that he owed no duty to the plaintiffs. This Court, in affirming the order dismissing the plaintiffs' complaint insofar as asserted against Dr. Schwartz, held that he did not owe a duty to these particular plaintiffs (see, Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., supra). Thereafter, Dr. Schwartz moved for summary judgment dismissing the cross claim of the defendant manufacturer Lederle Laboratories (hereinafter Lederle) for indemnity and contribution on the ground...