Colleen Hastie defeated a dispositive motion to dismiss in favor of third-party Skilled Nursing Facility

Traub Lieberman Partner Colleen Hastie defeated a dispositive motion to dismiss in favor of third-party Skilled Nursing Facility (“SNF”). Plaintiff commenced action against SNF sounding in medical malpractice, negligence, and violations of Public Health Law §2801-d, alleging SNF failed to properly care for, diagnose, and treat the plaintiff’s decedent during his residence at SNF. SNF commenced third-party action alleging contribution and common law and contractual indemnification against SNF’s contract physician (“physician”) who treated decedent during decedent’s admission at SNF, alleging physician committed medical malpractice.

Physician moved for dismissal of the third-party complaint on grounds that they cannot be liable on theories of contribution of indemnification, because the statute of limitations on medical malpractice had lapsed prior to plaintiff’s commencement of the action against SNF, and physician cannot be held liable under theories of negligence or violation of Public Health Law §2801-d. Prior to the opposition of the motion, the plaintiff stipulated to discontinue claims of negligence and Medical Malpractice against SNF.

Traub Lieberman opposed the motion to dismiss on grounds that claims for contribution and indemnification may be based on any theory of liability that the plaintiff could have asserted but failed to interpose. It is not necessary that the physician be liable for the decedent’s injury under the same theories or violation of duties alleged by the plaintiff against SNF. Traub Lieberman argued this right to contribution and indemnification from a third party extends to third-parties that the plaintiff had no right of recovery due to a failure to join the third party as a defendant or other special defense baring recovery, including expiration of the statute of limitations.

The court, denying the physician’s motion to dismiss, adopted SNFs argument, finding that though the physician may not be liable under the Public Health Law, and may not be sued by the plaintiff for medical malpractice, it does not preclude SNF’s claims against the physician.

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