| Simmons v New York City Health & Hosps. Corp. |
| 2010 NY Slip Op 01692 [71 AD3d 410] |
| March 2, 2010 |
| Appellate Division, First Department |
| William Simmons et al., Respondents, v New York CityHealth and Hospitals Corporation, Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell L. Gittin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered February 26, 2008,which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismissthis medical malpractice action as precluded by res judicata, unanimously reversed, on the law,without costs, defendant's motion granted and the complaint dismissed. The Clerk is directed toenter judgment accordingly.
The motion court, by declining to grant defendant's motion to dismiss the complaint andordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejecteddefendant's res judicata defense. Thus, the order at issue, at least to the extent that it denieddefendant's motion to dismiss on the ground of res judicata is appealable insofar as it affects asubstantial right (see Fellner vMorimoto, 52 AD3d 352, 353 [2008]; CPLR 5701 [a] [2] [v]).
However, contrary to the lower court's implicit conclusion, the instant action is in fact barredby res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose fromthe same course of treatment alleged in the instant action, and was dismissed on statute oflimitations grounds. While defendant was not a party to the prior action, as defendant doctor'semployer, required to indemnify defendant doctor in the prior action, it was in privy withdefendant doctor (Buechel v Bain, 97 NY2d 295, 304-305 [2001], cert denied535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs. Corp., 260 AD2d299 [1999]), the real party in interest in that action (Ebert v New York City Health & Hosps.Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicableto defendant was thus applied to him (see International Shared Servs. v County ofNassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]).Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omittingreferences to the previously named doctor (see Matter of Reilly v Reid, 45 NY2d 24,28-30 [1978]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1 [2000]).Concur—Andrias, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.