Impastato v. De Girolamo

95 A.D.2d 845, 464 N.Y.S.2d 382, 1983 N.Y. App. Div. LEXIS 18788

Opinion

— In an action to recover damages for medical malpractice, defendant Paul Citrin, M.D., appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated February 22, 1982, which, inter alla, denied his cross motion to dismiss plaintiff’s complaint as to him for failure to state a cause of action. Order affirmed, with costs. Although Dr. Citrin’s cross motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (subd [a]), it was made after joinder of issue and, therefore, was actually a motion for summary judgment pursuant to CPLR 3212 (see Connell v Hayden, 83 AD2d 30, 32). There is a sufficient showing in the record to permit a jury to find that the treating physician was Dr. Citrin’s employee. Mollen, P. J., Titone, Bracken and Brown, JJ., concur. [117 Misc 2d 786.]