BLUMBERG v. GOLDBERG (1999)

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

Leonard BLUMBERG, et al., Plaintiffs, v. Joseph GOLDBERG, M.D., et al., Defendants.
Patient's First Medical Care, P.C. et al., Third Party Plaintiffs-Respondents, v. I. Rausch & Sons, Third Party Defendant-Appellant.

Decided: May 18, 1999

SULLIVAN, J.P., TOM, LERNER and BUCKLEY, JJ.

Daniel E. O'Neill, New York City, for Third Party Plaintiffs-Respondents. Yolanda C. Himmelberger, for Third Party Defendant-Appellant.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered February 2, 1998, which, to the extent appealed from, denied third-party defendant I. Rausch & Sons' motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

The motion of third-party defendant I. Rausch & Sons (Rausch) was properly denied since Rausch failed to meet its burden, at this stage of the proceedings prior to the completion of discovery, of tendering sufficient medical proof in admissible form to establish that plaintiff's injuries could be reasonably allocated or divided among the alleged prior and successive tortfeasors (compare, Dubrey v. Champlain Val. Physicians Hosp. Med. Ctr., 189 A.D.2d 950, 592 N.Y.S.2d 149, with Hovsepian v. Kleinman-Cindrich, 226 A.D.2d 431, 641 N.Y.S.2d 61, and Kalikas v. Artale, 124 A.D.2d 645, 507 N.Y.S.2d 900).

MEMORANDUM DECISION.

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