Alexander Z. Dubicki Et Al. v. Robert F. Maresco Et Al‪.‬

[64 A.D.2d 645 Page 645] In an action to recover damages for personal injuries, etc., predicated upon theories of negligence and medical malpractice, the defendants, Dr. Joseph Dashefsky and Robert and Carlo Maresco, and the third-party defendant New York City Health and Hospitals Corporation appeal from a judgment of the Supreme Court, Kings County, entered April 12, 1977, which, after a jury trial, (a) awarded the plaintiff Alexander Dubicki $810,000, with interest, in his personal injury action against the defendants in the main action, (b) awarded the plaintiff Anne Dubicki $25,000, with interest, in her derivative action against the defendants in the main action, (c) dismissed the defendants Marescos' cross claims against defendant Dr. Dashefsky and the third-party defendant Health and Hospitals Corporation and (d) awarded Dr. Dashefsky recovery of $450,000, plus costs and disbursements, in his third-party action against the Health and Hospitals Corporation. Judgment modified, on the law, by (1) deleting the fourth decretal paragraph thereof, which dismissed the Marescos' cross claims against Dr. Dashefsky and the Health and Hospitals Corporation, and substituting therefor a provision granting judgment in favor of the Marescos and against both Dr. Dashefsky and the Health and Hospitals Corporation, (2) adding thereto a provision apportioning the Marescos' cross claims to entitle them to recover 54% of the verdict from the Health and Hospitals Corporation and to recover 36% of the verdict from Dr. Dashefsky, (3) deleting the fifth decretal paragraph thereof and substituting therefor a provision granting the Health and Hospitals Corporation's motion to dismiss the third-party complaint for contribution, (4) deleting from the first and second decretal paragraphs thereof all references to Dr. Dashefsky and (5) adding thereto a provision which entitles the plaintiffs to recover and have judgment against defendant Dr. Dashefsky to the extent of 36% of the awarded damages. As so modified, judgment affirmed, without costs or disbursements, and action remanded to the Trial Term for entry of an appropriate amended judgment. At approximately 3:00 a.m. on March 30, 1971, the plaintiff Alexander Dubicki, while on assignment as a cable splicer for the New York Telephone Company, sustained, inter alia, a broken right leg and deeply lacerated right groin as a result of the negligent operation of a vehicle owned by Carlo Maresco and driven by Robert Maresco. He was taken to the emergency room of Elmhurst General Hospital (Elmhurst General), which is owned and maintained by the New York City Health and Hospitals Corporation (City Hospitals Corp.). The groin wound was sutured and a full plaster cast applied to his leg. He remained there for two days. On April 1, 1971 Alexander Dubicki was transferred to Central General Hospital, which was closer to his home. There he came under the care of Dr. Joseph Dashefsky. After numerous operations and extensive medical treatment, Mr. Dubicki sustained complete disuse of his right leg, with the threat of future amputation. Alexander Dubicki and his wife, Anne Dubicki, sued: (1) the Marescos, alleging negligence in the operation of the vehicle which struck him; and (2) Dr. Dashefsky, alleging that this doctor's malpractice aggravated the injury. Dr. Dashefsky impleaded, inter alia, City Hospitals Corp., as a third-party [64 A.D.2d 645 Page 646]