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Fritz v. Burman

Supreme Court of New York, Second Department

June 26, 2013

James Fritz, etc., et al., appellants,
v.
Dmitriy Burman, et al., respondents. Index No. 12052/09

Gianfortune & Mionis, P.C., Mineola, N.Y. (Richard P. Stone of counsel), for appellants.

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Michael K. Chin of counsel), for respondent Dmitriy Burman.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrel, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondent Chinwe Offor.

Lewis, Johs, Avallone Aviles, LLP, Islandia, N.Y. (Seth M. Weinberg of counsel), for respondent Mercy Medical Center.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Timothy M. Smith and Jennifer J. Bennice of counsel), for respondents Marc Behar and Marc S. Behar, M.D., P.C.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered December 6, 2011, as granted those branches of the separate motions of the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendant Mercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C., which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of those defendants, (2) so much of a judgment of the same court dated January 10, 2012, as, upon the order, is in favor of the defendant Mercy Medical Center and against the plaintiffs dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against that defendant, and (3) so much of a judgment of the same court dated January 17, 2012, as, upon the order, is in favor of the defendants Marc Behar and Marc S. Behar, M.D., P.C., and against the plaintiffs dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against those defendants.

Motion by the respondent Mercy Medical Center on appeals, inter alia, from an order of the Supreme Court, Nassau County, entered December 6, 2011, and a judgment of the same court dated January 10, 2012, to dismiss the appeal from that order insofar as taken against it, in effect, on the ground that the right of direct appeal therefrom terminated upon entry of that judgment. By decision and order of this Court dated August 8, 2012, as amended August 28, 2012, among other things, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission of the appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the appeal from so much of the order as granted those branches of the separate motions of the defendant Mercy Medical Center and the defendants Marc Behar and Marc S. Behar, M.D., P.C., which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of them is dismissed; and it is further,

ORDERED that the judgments are reversed insofar as appealed from, on the law, those branches of the separate motions of the defendant Mercy Medical Center and the defendants Marc Behar and Marc S. Behar, M.D., P.C., which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of them are denied, the medical malpractice cause of action insofar as asserted by that plaintiff against those defendants is reinstated, and the order is modified accordingly; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and those branches of the motions of the defendants Dmitriy Burman and Chinwe Offor which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of them is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendants appearing ...


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