COHEN v. Caravan Bus Service, et al., Third-Party Defendants-Appellants.

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

Asher COHEN, et al., etc., Plaintiffs-Respondents, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant Third-Party Plaintiff-Respondent; Caravan Bus Service, et al., Third-Party Defendants-Appellants.

Decided: April 29, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, and THOMAS A. ADAMS, JJ. Nesci, Keane, Piekarski, Keogh & Corrigan (Melito & Adolfsen, P.C., New York, N.Y., [Ignatius John Melito and Paul F. McAloon] of counsel), for third-party defendants-appellants. Trolman, Glaser & Lichtman, P.C., New York, N.Y., (Michael T. Altman of counsel), for plaintiffs-respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y., (Mordecai Newman of counsel;  Igor Niman on the brief), for defendant third-party plaintiff-respondent.

In an action to recover damages for medical malpractice, etc., the third-party defendants appeal from an order of the Supreme Court, Queens County (Glover, J.), dated May 14, 2001, which denied their motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

Sylvia Cohen was injured in an automobile accident while a passenger on a bus owned by her employer, the third-party defendant Caravan Bus Service (hereinafter Caravan), and operated by her co-worker, the third-party defendant Elizabeth Serrano.   She was treated for her injuries at Elmhurst Hospital Center.   Three days later, while still hospitalized, she went into respiratory arrest, and suffered severe, permanent injuries.   This medical malpractice action was commenced against the defendant, New York City Health and Hospitals Corporation (hereinafter NYCHHC), to recover damages for those injuries.   NYCHHC, in turn, instituted a third-party action for contribution against Caravan and Serrano.   Caravan and Serrano moved for summary judgment dismissing the third-party complaint, arguing that NYCHHC, as a successive tortfeasor, had no right to contribution from them, as prior tortfeasors.   The motion was denied, and we affirm.

 Generally, a subsequent, or successive, tortfeasor does not have a right to contribution from a prior tortfeasor (see Innvar v. Liviu Schapira M.D., P.C., 166 A.D.2d 632, 633, 561 N.Y.S.2d 60).   While the initial tortfeasor may well be liable for the entire damage to the plaintiff, including any aggravation of injuries caused by a successive tortfeasor, the successive tortfeasor is liable only for the separate injury or aggravation caused by his or her conduct (see Ravo v. Rogatnick, 70 N.Y.2d 305, 310, 520 N.Y.S.2d 533, 514 N.E.2d 1104;  Zillman v. Meadowbrook Hosp., 45 A.D.2d 267, 270, 358 N.Y.S.2d 466).   Accordingly, where the injuries caused by the original and successive tortfeasor are capable of being separated from or divided between one another, the successive tortfeasor, being liable only for the injuries that tortfeasor caused, has no right of contribution from the original tortfeasor (see Eick v. Staten Is. Orthopaedic Assocs., 282 A.D.2d 496, 497, 722 N.Y.S.2d 880;  Kalikas v. Artale, 124 A.D.2d 645, 646, 507 N.Y.S.2d 900).   “However, where the plaintiff's injury is such that it is incapable of a reasonable or practicable division or allocation between the tortfeasors, the focus shifts to the relative degree of fault of the multiple tortfeasors and contribution becomes appropriate” (Lewis v. Yonkers Gen. Hosp., 174 A.D.2d 611, 612, 571 N.Y.S.2d 94).

 Caravan and Serrano failed to make a prima facie showing of entitlement to summary judgment dismissing the third-party complaint. Specifically, they failed to establish that their alleged negligence and the injuries that Sylvia Cohen initially sustained in the automobile accident were not substantial contributing causes of her ultimate injuries, for which the plaintiffs seek damages in the medical malpractice action (see Dubrey v. Champlain Val. Physicians Hosp. Med. Ctr., 189 A.D.2d 950, 951-952, 592 N.Y.S.2d 149;  Getzelman v. Lacovara, 82 A.D.2d 823, 439 N.Y.S.2d 433;  Wiseman v. 374 Realty Corp., 54 A.D.2d 119, 121-122, 387 N.Y.S.2d 612).   It cannot be conclusively determined that the alleged negligence of Caravan and Serrano was independent of the alleged negligence of NYCHHC.   As such, the motion for summary judgment dismissing the third-party complaint was properly denied.

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