Pezzella v. Catholic Medical Center of Brooklyn & Queens, Inc.

In an action to recover damages for medical malpractice, etc., the third-party defendant appeals from an order of the Supreme Court, Kings County, dated October 30, 1975, which denied its motion to dismiss the third-party complaint. Order reversed, on the law, with $50 costs and disbursements, and motion granted. No fact findings were presented for review. The plaintiff husband, while working for the third-party defendant, was injured as a result of the latter’s alleged negligence. Thereafter, he was treated in the emergency room of the defendant third-party plaintiff St. John’s Hospital, where, as a result of its alleged negligence, he was caused further injury. After suit was brought against it, the said hospital, as a successor tort-feasor, commenced a third-party action against the original tort-feasor, seeking a Dole apportionment (see Dole v Dow Chem. Co., 30 NY2d 143). The third-party defendant’s motion to dismiss the third-party complaint was denied. The third-party complaint is insufficient as a matter of law. On the record presented on this appeal, the third-party defendant and the third-party plaintiff are clearly independent and successive, rather than joint or concurrent, tort-feasors (see Zillman v Meadowbrook Hosp. Co., 45 AD2d 267). Hopkins, Acting P. J., Latham, Shapiro and Hawkins, JJ., concur.