Notice of Motion 1Affirmation in Partial Opposition 2Affirmation in Reply 3 Upon the foregoing papers, the motion of the defendant, Hospital for Special Surgery, seeks an Order, pursuant to CPLR §3217(b), to so-order the Stipulation of Discontinuance with Prejudice in favor of defendant, Hospital for Special Surgery, and removing its name from the caption of this matter, is granted to the extent indicated below.This is an action sounding in medical malpractice, wherein plaintiff, Peter P. Campbell, as Administrator for the Estate of Rosemarie Campbell, is seeking damages for serious personal injuries and wrongful death of Rosemarie Campbell due to the negligent actions of the defendants in the rendering of professional care and nursing home services to plaintiff’s decedent from on or about November 10, 2015 and thereafter, including but not limited to the subsequent periods of time up until January 30, 2016.In support of its motion, defendant, Hospital for Special Surgery, submits, inter alia, copies of the pleadings inclusive of plaintiff’s Verified Amended Complaint dated May 22, 2018. Defendant contends that although plaintiff executed a Stipulation of Discontinuance with Prejudice in its favor on September 17, 2018, co-defendants, South Nassau Communities Hospital and The Grand Pavilion for Rehab & Nursing at Rockville Center declined to execute same.In partial opposition, counsel for co-defendants contends that it does not oppose movant’s request to so-order the stipulation of discontinuance but seeks to expressly preserve defendant, The Grand Pavilion for Rehab & Nursing at Rockville Center’s Article 16 rights against codefendant Hospital for Special Surgery at the time of trial.“The determination of a motion for leave to voluntarily discontinue an action, without prejudice, pursuant to CPLR 3217(b), rests within the sound discretion of the court (see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050). In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted.” Expedite Video Conferencing Services, Inc., v. Botello, 67 A.D.3d 961, 890 N.Y.S.2d 82 [2d Dept. 2009] [citations omitted]. “CPLR 3217(b) provides, in pertinent part, that a court may issue an order directing a discontinuance “upon terms and conditions [that] the court deems proper” (see Rodrigues v. Samaras, 117 A.D.3d 1022, 1024, 987 N.Y.S.2d 78).In as much as the instant application is not the functional equivalent of a trial on the merits, the remaining defendants may seek to include any liability attributable to Hospital for Special Surgery as part of the total liability assigned to “all persons liable” for purposes of CPLR Article 16. See, Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 955 N.Y.S.2d 384 [2d Dept. 2012]; see also, Belus v. Southside Hosp. (2014 NY Slip Op 51776(U).Accordingly, defendant Hospital for Special Surgery’s motion is granted to the extent that the remaining defendants may seek to include any liability attributable to movant herein as part of the total liability assigned to “all persons liable” for purposes of CPLR article 16. The instant action is severed and shall continue as against the remaining defendants, with movant’s name removed from the caption going forward. Defendant Hospital for Special Surgery is directed serve a copy of this Order upon the County Clerk.This constitutes the decision and Order of this Court. Any relief not expressly granted herein is denied.December 11, 2018
