Opinion
August 17, 1998
Appeal from the Supreme Court, Richmond County (Amann, J.).
Upon the papers filed in support of the motion and the' papers having been filed in opposition or relation thereto, it is
Ordered that the motion is granted, the decision and order of this Court dated December 2, 1996 ( 234 A.D.2d 284), is recalled and vacated, and the following decision and order is substituted therefor:
In an action to recover damages for personal injuries, etc., the defendant Leroy L. Schwartz appeals from an order of the Supreme Court, Richmond County (Amann, J.), dated June 28, 1995, which denied his motion for summary judgment dismissing the cross claim of the defendant Lederle Laboratories.
Ordered that the order is affirmed, without costs or disbursements.
In Tenuto v. Lederle Labs. ( 90 N.Y.2d 606), the Court of Appeals determined that the appellant physician owed a duty of care to the plaintiffs, the parents of his infant patient, based on common-law principles of negligence and medical malpractice. Therefore, the order of the Supreme Court which denied the motion to dismiss the cross claim is affirmed.
Mangano, P. J., Rosenblatt, Sullivan and Joy, JJ., concur.