Connecticut Indem. Co. v Hoexter

Connecticut Indem. Co. v David L. Hoexter, D.M.D.P.C. 2007 NY Slip Op 08299 [45 AD3d 282] November 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Connecticut Indemnity Co. et al., Respondents,
v
David L. Hoexter, D.M.D.P.C., et al., Defendants, and Herbert S. Rubin, D.M.D., Appellant.

—[*1] Joel M. Kotick, New York City, for appellant.

Lutfy & Santora, Staten Island (James L. Lutfy of counsel), for respondents

Orders, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered May 18, 2006 and December 6, 2006, which, in a subrogation based on dental malpractice, denied defendant-appellant's motions for a severance of the claims against him from those against the codefendants, and for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

The motion for summary judgment was properly denied for failure to make a prima facie showing that appellant's capping and splinting of the patient's teeth was in accordance with good and accepted dental practice (compare Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985], with Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Appellant's admitted consultation with the codefendants raises common issues of law and fact between the claims asserted against defendants warranting a joint trial, absent a showing, not made here, that substantial delay or prejudice would thereby result (see Andresakis v Lynn, 236 AD2d 252 [1997]). We have considered appellant's remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Sullivan, Gonzalez and Sweeny, JJ.