Angel Crespo v. Thomas Francini, D.P.M., et al.; John DeBello, D.P.M., et al. v. Thomas Franchini, D.P.M.
Attorneys and Parties
Brief Summary
Medical malpractice/podiatry; third-party common-law indemnification and contribution; effect of failing to oppose a summary judgment (SJ) motion and abandonment on appeal.
Supreme Court, Bronx County, denied in part third-party defendant Dr. Franchini’s SJ motion seeking dismissal of the third-party complaint.
The Appellate Division unanimously reversed and granted Dr. Franchini’s SJ motion in full, directing dismissal of the third-party complaint.
Third-party plaintiffs (DeBello and New York Footcare Services, PLLC) did not oppose the SJ motion or defend the third-party complaint on appeal, which constitutes abandonment and deems the motion’s factual assertions undisputed; the Court declined to consider respondents’ request to dismiss the main complaint because there was no notice of appeal from that separate order and the relief was beyond the scope of the motion.
Background
Plaintiff Angel Crespo brought a medical malpractice action involving podiatric care. Defendants John DeBello, D.P.M., and New York Footcare Services, professional limited liability company (PLLC) (sued as New York Footcare of the Bronx, PLLC), commenced a third-party action against Thomas Franchini, D.P.M., seeking common-law indemnification and contribution. Dr. Franchini moved for summary judgment (SJ) dismissing the third-party complaint.
Lower Court Decision
By order entered on or about August 31, 2023 (Supreme Court, Bronx County, Joseph E. Cappella, J.), the court denied in part Dr. Franchini’s motion for SJ dismissing the third-party complaint.
Appellate Division Reversal
The Appellate Division, First Department, unanimously reversed, granted the motion in its entirety, and directed the Clerk to enter judgment dismissing the third-party complaint. The Court held that because the third-party plaintiffs did not oppose the SJ motion, they are deemed to have admitted the absence of any material factual dispute, and since they did not defend the third-party complaint on appeal, it was abandoned. The Court declined to consider respondents’ argument for dismissal of the main complaint because no appeal was noticed from that separate order, and it could not search the record to award relief not sought on Dr. Franchini’s motion.
Legal Significance
Reaffirms that the failure to oppose a summary judgment motion or to defend challenged claims on appeal results in abandonment and warrants dismissal of those claims. Also clarifies appellate limits: the court cannot grant relief not noticed for appeal or search the record to award summary judgment on claims not placed at issue by the moving party’s motion.
Unopposed summary judgment motions and failure to defend claims on appeal can result in dismissal as abandoned; appellate courts will not grant relief on issues not properly appealed or not raised by the motion.