Goler v. Sonsky

115 A.D.3d 644, 981 N.Y.S.2d 558

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 2014
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated April 2, 2012, as granted the separate motions of the defendants Mario DiBlasio and New York Community Hospital for summary judgment dismissing the complaint insofar as asserted against each of them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

In this medical malpractice action, the plaintiffs contend that the Supreme Court erred in granting the motion of the defendant Mario DiBlasio, a radiologist, for summary judgment dismissing the complaint insofar as asserted against him. Their contention is without merit. DiBlasio’s submissions in support of his motion, which included the affidavit of an expert radiologist, established that he did not depart from accepted medical practice in his treatment of the plaintiff Yevgeniy Goler (see Rivers v Birnbaum, 102 AD3d 26, 44-46 [2012]; Ahmed v New York City Health & Hosps. Corp., 84 AD3d 709, 711 [2011]). The affirmation of the plaintiffs’ expert radiologist and the affidavit of the plaintiffs’ expert surgeon submitted in opposition to the motion were insufficient to raise a triable issue of fact.

In addition, the Supreme Court properly granted the motion of New York Community Hospital (hereinafter NYCH) for summary judgment dismissing the complaint insofar as asserted against it. Because DiBlasio did not commit malpractice, no basis exists for proceeding against NYCH under a vicarious liability theory (see Simmons v Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178-1179 [2010]).

In light of our determination, we need not address the parties’ remaining contentions.

Mastro, J.E, Dickerson, Lott and Hinds-Radix, JJ., concur.