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GIANDANA v. PROVIDENCE REST NURSING HOME

8 N.Y.3d 859 (2007)

864 N.E.2d 606

832 N.Y.S.2d 476

NANCY GIANDANA, Individually and as Administratrix of the Estate of ANNA E. DEMUTH, Deceased, Respondent, v. PROVIDENCE REST NURSING HOME et al., Defendants. PROVIDENCE REST NURSING HOME, Third-Party Plaintiff, v. RAMAR SERVICES, INC., Third-Party Defendant, and BECKY AKOSAH, Third-Party Defendant-Appellant.

Court of Appeals of the State of New York.

Decided February 20, 2007.

Attorney(s) appearing for the Case

Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), for third-party defendant-appellant.

Marshall E. Bloomfield, Bronx (Michael P. Bloomfield of counsel), for respondent.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT concur in memorandum; Judge JONES taking no part.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, plaintiff's motion for partial summary judgment against Providence Rest Nursing Home denied, and the certified question answered in the negative.

Under plaintiff's theory of liability, third-party defendant Akosah was the only witness to the alleged negligent acts involving decedent. Nonetheless, Akosah has yet to be deposed or to otherwise participate...

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