ET AL THIRD PARTY DEFENDANTS v. << (2017)

Supreme Court, Appellate Division, Fourth Department.

PARTY DEFENDANTS–RESPONDENTS, ET AL., THIRD–PARTY DEFENDANTS.

CA 16–01952

Decided: November 17, 2017

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.

KENNETH B. GOLDBLATT, MOHEGAN LAKE, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS–RESPONDENTS AND THIRD–PARTY PLAINTIFFS. FELDMAN KIEFFER, LLP, BUFFALO (JAMES E. EAGAN OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT AUBURN COMMUNITY HOSPITAL, ALSO KNOWN AS AUBURN MEMORIAL HOSPITAL. MACKENZIE HUGHES LLP, SYRACUSE (RYAN T. EMERY OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT PHILIP GOTTLIEB, MD.

MEMORANDUM AND ORDER

AUBURN COMMUNITY HOSPITAL, ALSO KNOWN AS

AUBURN MEMORIAL HOSPITAL, PHILIP GOTTLIEB, MD,

THIRD

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff John Guido after defendants allegedly failed to provide him with his prescription medication while he was incarcerated at a facility operated by defendant County of Cayuga. Third-party defendant Philip Gottlieb, MD moved to vacate the note of issue and certificate of readiness, and plaintiffs cross-moved pursuant to CPLR 1010 to sever the third-party action from the main action. Supreme Court granted Gottlieb's motion and denied plaintiffs' cross motion. We affirm.

Contrary to plaintiffs' contention, we conclude that the court did not abuse its discretion in denying the cross motion for severance inasmuch as plaintiffs failed to show substantial prejudice (see CPLR 1010; Coffee v Tank Indus. Consultants, Inc., 133 AD3d 1305, 1306 [4th Dept 2015]; Neckles v. VW Credit, Inc., 23 AD3d 191, 192 [1st Dept 2005] ). The court also properly granted the motion to vacate the note of issue and certificate of readiness because, among other things, “the third-party action was commenced after the note of issue was filed in the main action, and [Gottlieb] had outstanding requests for discovery” (Coffee, 133 AD3d at 1306; see 22 NYCRR 202.21 [e] ).

Mark W. Bennett

Clerk of the Court

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go To Learn About The Law