SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

JEAN H. SHEPARDSON,

INDIVIDUALLY AND AS

ADMINISTRATIX OF THE

ESTATE OF JAMES H.

SHEPARDSON

Plaintiff,

vs Index #H-11737

WOMEN'S CHRISTIAN ASSOCIATION

HOSPITAL; JONES HILL MEMORIAL

HEALTH CENTER; CHARLES SINATRA,

M.D.; AND MARVIN SIEGEL, M.D.

Defendants.

_____________________________________________

HAGERTY & BRADY

(Thomas V. Hagerty, Esq.

of Counsel) for Plaintiff

FELDMAN & KIEFFER, LLP

(Andrew J. Feldman, Esq.

of Counsel) for Defendant

CONNORS & VILARDO

(Randall D. White, Esq.

of Counsel) for Sinatra

CARMEN P. TARANTINO, ESQ.

(Janice A. Barber, Esq.

of Counsel) for Siegel

DECISION AND ORDER

GERACE, J.

Defendant Sinatra moves to dismiss cross claims

against him, without prejudice, on the strength of

plaintiff's voluntarily discontinuance of the main claim,

without prejudice.

Defendant Hospital opposes the motion because the

status of Dr. Sinatra's relationship with the WCA and JONES

HILL defendants has not been clarified "through testimony".

Defendant contends that the cross claims against

Dr. Sinatra can not longer be asserted because they are

"by definition derivative of a direct claim by the

plaintiff".

Where the complaint is dismissed as to a defendant

against whom a codefendant has filed a cross complaint,

such defendant is not thereby entitled to a dismissal of

such cross complaint. KADISCH V. PRESTON PROPERTIES, 1

NYS2d 226; SECOR V. LEVINE 273 AD 899, 77 NYS2d 226. See

also BROOKS V. CHEMICAL LEAMAN TANK LINES, INC. (1979,1st

Dept) 71 AD2d 405, 422 NYS2d 695.

Moreover, a cross-claim can be for any claim at all,

whether or not related to the plaintiff's claim. CPLR

3019(b). Subdivision (f) provides that a cause of action

contained in a cross-claim shall be treated, as far as

practicable, as if it were contained in a complaint.

Dr. Sinatra contends these cases did not address

dismissal of the cross claims "without prejudice." He

cites FIGUEROA V. KAHN, 101 Misc.2d 821,822,422 N.Y.S.2d

274 (Sup.Ct. N.Y.Co. 1979), BALDI V. BUFFALO GENERAL

HOSPITAL, Index No. H-77556 (Sup.Ct. Erie Co. 1992), and

NICKERSON V. BUFFALO GENERAL HOSPITAL, Index No. 2378/88

(Sup.Ct. Erie Co. 1991) which permitted dismissal of cross

claims "without prejudice".

In JAVITZ V. SLATUS, 93 A.D.2d 830, 461 N.Y.S.2d 44

(2nd Dep't 1983) and CUSICK V. LUTHERAN MEDICAL CENTER, 105

A.D.2d 681, 481 N.Y.S.2d 122 (2nd Dep't 1984) where the

Court dismissed the complaint, the Courts converted the

cross claims into third party complaints. This Court will

consider that approach after depositions regarding

Dr. Sinatra's relationship to JONES HILL and WCA are

completed.

However, as to the cross claims against him,

Dr. Sinatra should not be required to go to the trouble and

expense of participating in any motions, depositions or

documentary discovery that the case generates but do not

affect him, directly or indirectly.

Therefore, the Court denies the Sinatra motion to

dismiss cross claims against him, without prejudice, on the

following conditions:

1. That depositions and discovery that relate to the

relationship and potential liability of Dr. Sinatra to

WCA or JONES HILL be completed within 60 days from the

date of this Decision and Order.

2. For most intents and purposes, all parties shall

treat Dr. Sinatra as though the cross claims have been

dismissed against him, except for depositions of and

discovery demands on him specifically. Counsel for

all parties are hereby directed to refrain from, and

shall be relieved of any responsibility to serve

copies of correspondence, notices, pleadings, motions,

discovery demands, EBTs, on Dr. Sinatra except where

he is directly and specifically involved.

3. Dr. Sinatra and his counsel are excused from

attendance at any deposition other than for

Dr. Sinatra or any relating to his relationship or

liability to these cross claimants. He is excused

from the scheduling order of this Court herein until

further order of this Court, and may apply for an

appropriate protective order if prejudiced in any way

by this provision.

4. Defendants concede "Dr. Sinatra worked at WCA

Hospital and JONES HILL pursuant to contract" and

should already be fully aware of the relationship

between the parties. Therefore, should the cross

claims against him eventually be dismissed, the Court

will entertain his application for costs, and counsel

fees should the facts and circumstances justify such

relief.

The signing, filing, and mailing of a copy by the

Court of this Decision and Order shall not constitute

notice of entry required by CPLR 2220. Counsel are not

relieved from the applicable provisions of that section

respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.

Dated: February , 1996

Mayville, New York

________________________________

JOSEPH GERACE

Supreme Court Justice

Papers Considered:

Memorandum of Law

CONNORS & VILARDO (Randall D. White, Esq.)

January 9, 1996

Notice of Motion

CONNORS & VILARDO (Randall D. White, Esq.)

January 9, 1996

Affidavit of Andrew Feldman, Esq.

in Opposition to the Motion of Dr. Sinatra

FELDMAN & KIEFFER, LLP (Andrew J. Feldman, Esq.)

January 16, 1996

Reply Memorandum of Law

on Behalf of Dr. Charles Sinatra

CONNORS & VILARDO (Randall D. White, Esq.)

January 17, 1996

Supplemental Memorandum of Law

on Behalf of Dr. Charles Sinatra

CONNORS & VILARDO (Randall D. White, Esq.)

January 25, 1996

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, was duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.