From Casetext: Smarter Legal Research

Watson v. Getman

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1999
260 A.D.2d 472 (N.Y. App. Div. 1999)

Opinion

April 12, 1999

Appeal from the Supreme Court, Kings County (Levine, J.).


Ordered that the order is modified, by deleting the provision thereof which denied that branch of his motion which was for leave to amend his answer to assert the affirmative defense of release, and substituting therefore a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements, and the proposed amended answer is deemed served.

The Supreme Court properly denied summary judgment to the defendant as triable issues of fact exist as to whether his actions constituted a failure to comply with good accepted medical practice (see, CPLR 3212 [b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557; Ballatore v. Verini, 255 A.D.2d 472). Contrary to the defendant's contention, it was well within the court's broad discretion to accept the physician's affirmation submitted by the plaintiff as expert testimony (see, Werner v. Sun Oil Co., 65 N.Y.2d 839; Julien v. Physician's Hosp., 231 A.D.2d 678).

That branch of the defendant's motion which was for leave to amend his answer to assert the affirmative, defense of release, based upon a release entered into by the plaintiff in favor of Kingsbrook Jewish Medical Center (hereinafter Kingsbrook), and its agents, servants, and employees, in a prior action, should have been granted. Leave to amend should be freely given (see, CPLR 3025 [a]). The court held that application of the release to the defendant was barred by collateral estoppel because the court in the prior action found that the defendant was not an agent, servant, or employee of Kingsbrook. However, since the defendant was not a party to the prior action, the doctrine of collateral estoppel was inapplicable to him (see, e.g., Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500).

The defendant's remaining contention is without merit.

O'Brien, J. P., Joy, Krausman and Goldstein, JJ., concur.


Summaries of

Watson v. Getman

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1999
260 A.D.2d 472 (N.Y. App. Div. 1999)
Case details for

Watson v. Getman

Case Details

Full title:CHAUTE WATSON, Respondent, v. ISRAEL GETMAN, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 1999

Citations

260 A.D.2d 472 (N.Y. App. Div. 1999)
688 N.Y.S.2d 189

Citing Cases

Llama v. Mobil Service Station

Accordingly, the plaintiffs' warranty claim is deemed interposed as of the time the claims in the original…

Grippe v. Silverite Constr. Co.

Leave to amend is freely given, and should be granted where the proposed amendment is neither palpably…