Rachel Djeddah, Plaintiff–Respondent, v. Daniel Turk Williams, Defendant–Appellant. (2011)

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

Richard Djeddah, Plaintiff, Rachel Djeddah, Plaintiff–Respondent, v. Daniel Turk Williams, Defendant–Appellant.

4898

Decided: April 26, 2011

Tom, J.P., Andrias, Friedman, Román, JJ.

Callan, Koster, Brady & Brennan, LLP, New York (Michael P. Kandler of counsel), for appellant.

Rachel Djeddah, respondent pro se.

Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 17, 2009, which denied defendant's motion to renew his prior motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

As plaintiff husband's action for medical malpractice was voluntarily withdrawn by him without prejudice to plaintiff wife's claim for loss of consortium, the motion court properly permitted the wife's claim to proceed. Although dismissal of the husband's claims on the merits would mandate dismissal of the wife's derivative claim (see e.g. Camadeo v. Leeds, 290 A.D.2d 355 [2002] ), where, as here, the claims were brought simultaneously and the primary action was voluntarily withdrawn withoutprejudice, there is no bar to the loss of consortium claim (see Champagne v State Farm Mut. Auto. Ins. Co., 185 A.D.2d 835 [1992], lv denied 81 N.Y.2d 704 [1993] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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