Atlantic Plastic & Hand Surgery, PA v Chelli & Bush

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Atlantic Plastic & Hand Surgery, PA v Chelli & Bush 2018 NY Slip Op 33472(U) December 12, 2018 Supreme Court, Richmond County Docket Number: 150669/2015 Judge: Jr., Orlando Marrazzo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 12/14/2018 03:19 PM NYSCEF DOC. NO. 78 INDEX NO. 150669/2015 RECEIVED NYSCEF: 12/14/2018 STATE OF NEW YORK SUPREME COURT OF THE MTCHAEL RISKIN' M'D" DECISION/ORDER DCM PART 21 JR' HON. ORLANDO MARRAZZO' Plaintffis), Index No.: 15066912015 MotionNo' 4 -against- CHELLI & BUSH' Defendant(s) ERY, PA & MICIIAEL RISKEN' M.D.' Plaintiff(s)' -against- THOMAS LOMBARDO' Defendant(s). ffiMAs LoMBARDo' Third-PartY Plaintiff -against- CHELLI & BUSHO The following numbered 1 to 3 were fullY submitted on 13th day of November 2018 Papers llPage 1 of 4 [*FILED: 2] RICHMOND COUNTY CLERK 12/14/2018 03:19 PM NYSCEF DOC. NO. 78 INDEX NO. 150669/2015 RECEIVED NYSCEF: 12/14/2018 Numbered Papers and Exhibits' dated' Defendant's Motion to dismiss, with supporting """" """' August 3I,2018............. 1 Exhibits, dated' october 4' Affirmation in opposition, with Supporting Papers and ....,.2 2018 a Reply, dated, Nove Third-party defendant chelli & 2Il4 (b) for an order dismissing Bush moves in pursuant to GPLR Section defendant and third-party plaintiff Thomas is set forth bel0w' chelli & Lombardo's third-party complaint against them. As Bush,s motion is granted and Thomas Lombardo's complain'i" against them is dismissed. to state a cause of action The court notes that the third-party complaint fails and common law for the two claims asserted therein, common law indemnification contribution, as: that the firm should have Both causes of action are premised on the assertion Hand Surgery, PA and Michael but failed to remit to the plaintiff Atlantic Plastic & Risin, M.D. ("Plaintiffs"), a portion of the settlement proceeds of the personal injury However' Lombardo cannot action that the firm prosecuted as Lombardo's counsel' law establish the legal predicates under New York for asserting a common law dated July 3 !,2018 held that contribution claim, as this court by decision and order of the settlement proceeds the firm had no duty to remit to plaintiff any portion 2 of 4 of [*FILED: 3] RICHMOND COUNTY CLERK 12/14/2018 03:19 PM NYSCEF DOC. NO. 78 INDEX NO. 150669/2015 RECEIVED NYSCEF: 12/14/2018 legal the referenced personal injury action; and Lombardo cannot establish the claim' predicate under New York law for asserting a common law indemnification It is well settled, that common law contribution is available only where the to the party party from whom contribution is sought allegedly breached some duty v Becket who is pursuing the party requesting contribution (County of Westchester Assoc.,102 ADzd3a [App. Div. 2nd Dept. 198a]; Fladerer v Needlemqn, 30 AD2d 378 [App. Div. 3'd DePt. 1968].) This court by decision and order dated July 3 I,2OI8 held that the firm had no duty to remit to plaintiffs any of the proceeds of the referenced personal injury action. This decision is law of this case. As such, Lombardo cannot prove an essential element of any contribution claim against the firm. Therefore, Lombardo failed to establish that the firm had or breached any duty to plaintiffs. Therefore, Lombardo's contribution cause of action against the firm is dismissed. Under New york law, the common law indemnification claim is only available where the party seeking indemnification is free of fault, that their liability is vicarious based upon the active wrongdoing of the purty from whom indemnification is sought (Great American Insurance Co., v Bearcat Financial services, Inc.go AD2d 533 [App. Div l't Dept. 2011]; Garrett v Holiday Inns,58 NY2d 253 UgS3l; Mikelatus v Theofitaktidis, 20131.) 3lPage 3 of 4 105 AD3d 822 fApp. Div. 2nd Dept' [*FILED: 4] RICHMOND COUNTY CLERK 12/14/2018 03:19 PM NYSCEF DOC. NO. 78 INDEX NO. 150669/2015 RECEIVED NYSCEF: 12/14/2018 Here, Lombardo's liability to plaintiff is not vicarious, based upon conduct the of firm. Ratherthe medical bills that are the subject of plaintiffs claims against Lombardo are for surgery and other medical treatment that Lombardo received. Lombardo is the obligor of said bills, not the firm. Therefore, Lombardo,s indemnification cause of action against the firm is dismissed. Accordingly, the third-party defendant Chelli & Bush's motion to dismiss the third-party complaint against them is granted and the third-party complaint is dismissed in its entirety. This constitutes the decision and order of the court. Dated: December 12, 2018 Staten Island. New York , Jt., Justice, Supre 4lPage 4 of 4