Ellis v. Brookdale Hospital Medical Center

122 A.D.2d 19, 504 N.Y.S.2d 189, 1986 N.Y. App. Div. LEXIS 59091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1986
• Status: Published

Opinion

— In an action to recover damages for personal injuries predicated upon alleged medical malpractice, the defendant Tancer appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated May 25, 1984, which denied his cross motion for summary judgment dismissing the complaint as to him.

Order affirmed, with costs, and without prejudice to renewal of the defendant Tancer’s application for summary judgment upon the completion of discovery.

No authority has been drawn to our attention, nor has our independent research revealed any case, which permits the imposition of liability against the director of a medical department in a hospital without proof of a negligent act or omission on his part, whether acting in a treating or supervising capacity. Wilson v McCarthy (57 AD2d 617) and Maxwell v Cole (126 Misc 2d 597) are not to the contrary, although those cases contain some unnecessarily broad language.

Nevertheless, inasmuch as the rules and regulations promulgated by the defendant Tancer have not been furnished, and since no opportunity has been accorded to the plaintiff for discovery with respect to these rules and regulations and matters relating thereto, we deem the cross motion for summary judgment to be premature. In this regard, our decision is without prejudice to a renewal of the defendant Tancer’s cross motion upon the completion of discovery. Lazer, J. P., Gibbons, Eiber and Kunzeman, JJ., concur.