Having read the article “Discontinuing Actions Against Employees While Proceeding Against Employers” by Thomas A. Moore and Matthew Gaier (NYLJ, Dec. 6) and having recently co-authored with Mr. Gaier and Norman Bard a chapter on “ stipulations” for an upcoming book on New York medical malpractice, explicitly including discontinuances, I am compelled to strenuously dissent.
Essentially, the authors repeatedly contend that Escobar v. New York Hospital, 111 A.D.2d 128 (1st Dept., 1985), holding that a discontinuance with prejudice running in favor of an employee eliminates the plaintiff’s right to impose vicarious liability upon the employer for that employee, has been overruled.
