Love v. St. Charles Hospital

206 A.D.2d 977, 614 N.Y.S.2d 823, 1994 N.Y. App. Div. LEXIS 7704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1994
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint against St. Charles Hospital dismissed. Memorandum: Defendant hospital’s motion for summary judgment should have been granted. The hospital submitted evidence, in the form of hospital documents, deposition transcripts and a physician’s affidavit, sufficient to make a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff and defendant doctors failed to produce evidentiary proof in admissible form sufficient to establish a material issue of fact that requires a trial (see, Alvarez v Prospect Hosp., supra, at 324; Zuckerman v City of New York, supra, at 562). The affidavit of plaintiff’s doctor is conclusory and unsupported by competent evidence. It fails to establish the elements of a medical malpractice or negligence cause of action against defendant hospital (see, Alvarez v Prospect Hosp., supra). Because the doctors were independent physicians retained by the mother, the hospital is not liable for their alleged malpractice (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 79; Toth v Community Hosp., 22 NY2d 255, 265, rearg denied 22 NY2d 973; Florentino v Wenger, 19 NY2d 407, 414). (Appeal from Order of Supreme Court, Suffolk County, Tanenbaum, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.