
    Dominick Tenuto et al., Plaintiffs, v Lederle Laboratories, Respondent, and Leroy L. Schwartz, Appellant.
    [676 NYS2d 510]
   Motion by the respondent, in effect, pursuant to CPLR 5015 (a) (5), to vacate a decision and order of this Court dated December 2, 1996, which reversed an order of the Supreme Court, Richmond County (Amann, J.), dated June 28, 1995, denying the appellant’s motion for summary judgment dismissing the respondent’s cross claim.

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 AD2d 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 NY2d 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.  