Catanese v. Furman , 779 N.Y.S.2d 391 ( 2004 )

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered September 3, 2003 in an action to recover damages for medical malpractice. The order, inter alia, denied the motion of plaintiffs and their cross motion in limine to preclude defendants Donald J. Fur-man, M.D. and Women’s Christian Association Healthcare System from offering evidence pertaining to a claim of negligence by defendant Alberto C. Gutierrez, M.D.

It is hereby ordered that the order so appealed from be and the same hereby is modified on the law by granting plaintiffs’ cross motion in part and precluding defendant Donald J. Fur-man, M.D. from presenting a claim of negligence against defendant Alberto C. Gutierrez, M.D. and as modified the order is affirmed without costs in accordance with the same memorandum as in Catanese v Furman (9 AD3d 863 [2004]).

All concur except Green, J.P., and Gorski, J., who dissent and vote to dismiss the appeal in the same dissenting memorandum as in Catanese v Furman (9 AD3d 863, 864 [2004]). Present— Green, J.P., Hurlbutt, Kehoe, Gorski and Lawton, JJ.