Opinion
November 10, 1986
Appeal from the Supreme Court, Nassau County (Harwood, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Nikolaos Kalikas injured his back on or about August 29, 1980, while performing construction work at the home of the third-party defendant Carl Abraham. Abraham purchased "painkillers" for the plaintiff and arranged for him to see the defendant Dr. Charles R. Artale, a chiropractor, who treated the plaintiff on September 2, 1980. On September 3, 1980, the plaintiff was treated by Dr. Angelo Arthur Protos, a physician. On September 4, 1980, the plaintiff was admitted to the emergency room of Staten Island Hospital where a "herniated disc L-4, L-5" was diagnosed and a laminectomy performed.
The plaintiff and his wife commenced this action against Drs. Artale and Protos sounding in chiropractic and medical malpractice. Thereafter, Dr. Artale commenced a third-party action against Carl Abraham for contribution, essentially for negligence associated with the maintenance of his premises. Thereafter, Dr. Protos commenced an almost identical third-party action.
After joinder of issue, Abraham moved for summary judgment dismissing Dr. Artale's third-party complaint. Both Dr. Artale and Dr. Protos opposed the motion, and Special Term granted the motion and dismissed both third-party complaints against Abraham. An appeal was taken only by Dr. Artale.
On the record before us, Dr. Artale cannot prevail in his action for contribution against Abraham under the theories advanced by him. With respect to the alleged negligence by Abraham in maintaining his property and causing the plaintiff's injuries, Abraham is clearly a prior independent tortfeasor and cannot be liable for contribution under these circumstances (see, Zillman v Meadowbrook Hosp. Co., 45 A.D.2d 267; Frederic v St. John's Episcopal Hosp., 100 A.D.2d 571). Any such negligence by Abraham did not render the malpractice by Drs. Artale and Protos more "likely" (see, Zillman v Meadowbrook Hosp. Co., supra). Further, assuming that Abraham's negligence caused the initial injury, the exacerbation and aggravation of such condition allegedly caused by the doctors can be separated and evaluated by a jury. The injuries are not inseparable such as those involving a wrongful death action (see, Wiseman v 374 Realty Corp., 54 A.D.2d 119; Kucinski v Rish, 108 Misc.2d 188; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 1401.11; see also, Frederic v St. John's Episcopal Hosp., supra).
Dr. Artale's somewhat novel argument that Abraham can be liable for contribution for providing the plaintiff with "painkillers" and arranging an appointment for the plaintiff to see Dr. Artale is without merit. Assuming Abraham acted as a "volunteer" in aiding the plaintiff, the record is devoid of any proof that Abraham did not act as a reasonably prudent lay person under the circumstances or that he caused the plaintiff's treatment to be unreasonably delayed (see generally, Clark v State of New York, 195 Misc. 581, affd 276 App. Div. 10, rearg denied 276 App. Div. 940, affd 302 N.Y. 795; Rockwell v State of New York, 32 Misc.2d 167, affd 19 A.D.2d 946; see also, Middelton v Whitridge, 213 N.Y. 499; Zelenko v Gimbel Bros., 158 Misc. 904, affd 247 App. Div. 867; Plutner v Silver Assoc., 186 Misc. 1025; Duty and liability on one who voluntarily undertakes to care for injured person, Ann., 64 ALR2d 1179).
Accordingly, Special Term properly granted Abraham's motion for summary judgment and dismissed the third-party action against him. Mangano, J.P., Brown, Rubin and Spatt, JJ., concur.