CHARLES v. Bio-Medical Applications of New York, Inc., et al., second third-party defendants-respondents. (2008)

In an action to recover damages for medical malpractice and wrongful death, the defendant third-party plaintiff/second third-party plaintiff appeals from an order of the Supreme Court, Kings County (Rivera, J.), dated August 15, 2006, which granted that branch of the motion of the third-party defendant which was to dismiss the third-party complaint pursuant to CPLR 3211(a)(8), and granted that branch of the separate motion of the second third-party defendants which was to dismiss the second third-party complaint pursuant to CPLR 3211(a)(8).

ORDERED that the order is affirmed, with one bill of costs payable by the defendant third-party plaintiff/second third-party plaintiff to the third-party defendant and the second third-party defendants appearing separately and filing separate briefs.

As conceded by the defendant third-party plaintiff/second third-party plaintiff, AFMSM, Inc., sued herein as Atlantic Hemodialysis Center (hereinafter AFMSM), the plaintiff failed to properly serve it with the summons and complaint (see e.g. De Candia v. Hudson Waterways, 89 A.D.2d 506, 507, 452 N.Y.S.2d 196;  see also Gajdos v. Haughton El., 109 A.D.2d 729, 486 N.Y.S.2d 47;  Jacobs v. Zurich Ins. Co., 53 A.D.2d 524, 384 N.Y.S.2d 452).   Therefore, contrary to AFMSM's contention, the Supreme Court properly granted those branches of the separate motions of the third-party defendant, New York Dialysis Services, Inc., and the second third-party defendants, Bio-Medical Applications of New York, Inc., and FMS New York, Inc., which were to dismiss the third-party complaint and the second third-party complaint, respectively (see Prigent v. Friedman, 264 A.D.2d 568, 569, 695 N.Y.S.2d 79;  see also Cogan v. Madeira Assoc., 1 A.D.3d 1066, 766 N.Y.S.2d 475;  Nickerson v. City of New York, 309 A.D.2d 588, 588, 765 N.Y.S.2d 510;  Braithwaite v. 409 Edgecombe Ave. HDFC, 294 A.D.2d 233, 234, 742 N.Y.S.2d 280;  Martinez v. One Plus Rental Sys., 247 A.D.2d 594, 594, 668 N.Y.S.2d 106;  Lewis v. Borg-Warner Corp., 35 A.D.2d 722, 314 N.Y.S.2d 566).

The remaining contention of AFMSM is without merit.