Belus v Southside Hosp.
Annotate this CaseDecided on December 3, 2014
Supreme Court, Suffolk County
Deborah Belus, as Administratrix of the Estate of BETSY BELUS, deceased, Plaintiff,
against
Southside Hospital, WILLIAM ONYEBEKE, M.D., MAAN SHIKARA, M.D., SCOTT WODICKA, M.D., and JAMES SHASHASTY, P.A., Defendant.
08-9451
BAUMAN & KUNKIS, P.C.
Attorney for Plaintiff
14 Penn Plaza, Suite 2208
New York, New York 10122
BARTLETT, MCDONOUGH, & MONAGHAN
Attorney for Defendant Southside Hospital & Shashasty, P.A.
670 Main Street
Islip, New York 11751
GABRIELE & MARANO, LLP
Attorney for Defendant Onyebeke, M.D.
100 Quentin Roosevelt Boulevard
P.O. Box 8022
Garden City, New York 11530
HELWIG, HENDERSON, RYAN & SPINOLA
Attorney for Defendant Shikara, M.D.
One Old Country Road, Suite 428
Carle Place, New York 11514
SHAUB, AHMUTY, CITRIN & SPRATT, LLP
Attorney for Defendant Wodicka, M.D.
1983 Marcus Avenue
Lake Success, New York 11042
Andrew G. Tarantino Jr., J.
Upon the following papers numbered 1 to 30read on this motion for discontinuance of action as against defendant Scott Wodicka, M.D. ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 28 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 29 - 30 ; Replying Affidavits and supporting papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion by defendant Scott Wodicka, M.D. for an order pursuant to CPLR 3217 (b) granting him a court-ordered discontinuance and dismissal of the complaint as against him, and for an order deleting his name from the caption of this action is granted.
This is an action to recover damages for alleged wrongful death and medical malpractice with respect to plaintiff's decedent who died on September 19, 2007 at Southside Hospital following surgery. Defendant Scott Wodicka, M.D. (Dr. Wodicka) seeks a court-ordered discontinuance inasmuch as plaintiff and co-defendant Maan Shikara, M.D. (Dr. Shikara) voluntarily discontinued the action with prejudice with respect to him by stipulation of discontinuance dated July 26, 2013 but the remaining co-defendants have not signed the stipulation. Dr. Wodicka notes that no cross claims were asserted against him by his co-defendants such that their rights will not be prejudiced by permitting said discontinuance against him. His submissions in support of the motion include the pleadings and the stipulation of discontinuance dated July 26, 2013 signed by the attorneys for plaintiff, Dr. Wodicka and Dr. [*2]Shikara.
Defendants James Shashasty, P.A., and Southside Hospital submit an affirmation in partial opposition indicating that they have no opposition to the dismissal of plaintiff's claims against Dr. Wodicka and to the removal of his name from the caption of the action. However, they note that the stipulation contains language that the defendants will not assert at trial the provisions of CPLR article 16 nor seek contribution pursuant to CPLR article 14 against Dr. Wodicka, which they argue would render them potentially vicariously liable for any malpractice by Dr. Wodicka and unduly prejudice them. They request that the Court expressly reserve the rights of the various co-defendants under CPLR article 14 and CPLR article 16.
A plaintiff may discontinue an action against a party pursuant to CPLR 3217 (a) by filing with the Clerk of the Court a written stipulation signed by the attorneys of record for all the parties. The subject stipulation of discontinuance signed by the attorney for plaintiff but not the attorneys for all of the defendants constituted a release of Dr. Wodicka from the action within the meaning of General Obligations Law § 15—108 (see General Obligations Law § 15—303; Tereshchenko v Lynn, 36 AD3d 684, 685, 828 NYS2d 185 [2d Dept 2007]; Hanna v Ford Motor Co., 252 AD2d 478, 479, 675 NYS2d 125 [2d Dept 1998]; Killeen v Reinhardt, 71 AD2d 851, 853, 419 NYS2d 175 [2d Dept 1979]). Said stipulation served to relieve Dr. Wodicka "from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules" (General Obligations Law § 15—108 [b] [emphasis added]; see Rosado v Proctor & Schwartz, 66 NY2d 21, 24, 494 NYS2d 851 [1985]; Tereshchenko v Lynn, 36 AD3d 684, 686, 828 NYS2d 185). However, any verdict in favor of plaintiff and against the remaining defendants will be reduced in the amount of Dr. Wodicka's equitable share of the damages, if any (see General Obligations Law § 15—108 [a]; Tereshchenko v Lynn, 36 AD3d 684, 686, 828 NYS2d 185; Killeen v Reinhardt, 71 AD2d 851, 853, 419 NYS2d 175).
The Court, in its sound discretion, has the authority to grant or deny an application to discontinue an action made pursuant to CPLR 3217 (b) (Tucker v Tucker, 55 NY2d 378, 449 NYS2d 683 [1982]). In the absence of special circumstances, such as prejudice to the substantial rights of other parties to the action, a motion for a voluntary discontinuance should be granted (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32, 732 NYS2d 223 [1st Dept 2001]; Citibank v Nagrotsky, 239 AD2d 456, 457, 658 NYS2d 966 [2d Dept 1997]; County of Westchester v Welton Becket Assocs., 102 AD2d 34, 478 NYS2d 305 [1984], affd 66 NY2d 642, 495 NYS2d 364). Although CPLR 3217 (b) authorizes a voluntary discontinuance by court order on motion of "a party asserting a claim," this provision may not be the basis for a dismissal motion by a party defending a claim unless the party asserting the claim consents or joins in the motion (Shamley v ITT Corp., 67 NY2d 910, 501 NYS2d 810 [1986]).
Here, since the subject stipulation has not been signed by counsel for defendants William Onyebeke, M.D., James Shashasty, P.A., and Southside Hospital, CPLR 3217 (a) is inapplicable. However, CPLR 3217 (b) is applicable, and none of the above co-defendants have submitted any opposition to the request for a discontinuance nor have they asserted any cross claims against Dr. [*3]Wodicka. Therefore, the request to discontinue the action as against Dr. Wodicka with prejudice is granted and the complaint is dismissed as against him. In addition, his name is to be deleted from the caption of this action.
Addressing the concerns of defendants James Shashasty, P.A., and Southside Hospital, although Dr. Wodicka will not be liable for contribution under CPLR article 14, any verdict in plaintiff's favor and against the remaining defendants will be reduced in the amount of Dr. Wodicka's equitable share of damages, if any (see Tereshchenko v Lynn, 36 AD3d 684, 686, 828 NYS2d 185; Killeen v Reinhardt, 71 AD2d 851, 853, 419 NYS2d 175). In addition, inasmuch as the instant motion was one for discontinuance pursuant to CPLR 3217, which is not the functional equivalent of a trial on the merits, the remaining defendants may seek to include any liability attributable to Dr. Wodicka as part of the total liability assigned to "all persons liable" for purposes of CPLR article 16 (see Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 955 NYS2d 384 [2d Dept 2012]; Anderson v House of Good Samaritan Hosp., 44 AD3d 135, 840 NYS2d 508 [4th Dept 2007]).
In light of the above, the instant action is severed and shall continue as against the remaining defendants. Counsel for defendant Scott Wodicka, M.D. is directed to serve a copy of this order upon the Calendar Clerk.
Dated:_December 3, 2014_________________________________________________________
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