Sheehan v. Columbia Presbyterian Medical Center

182 A.D.2d 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered on or about August 27, 1991, which granted defendant The Presbyterian Hospital in the City of New York’s motion for summary judgment, unanimously affirmed, without costs or disbursements.

We agree with the IAS court that plaintiffs’ failure to come forward with any evidence tending to show that defendant Gump was an employee or agent or otherwise under the control of defendant Presbyterian warrants a finding that no issue of fact exists relating to the latter’s liability for any malpractice by the former under the theory of respondeat superior (see, Sledziewski v Gioffi, 137 AD2d 186, 188-189). There is no merit to plaintiffs’ contention that summary judgment was granted prematurely. The facts necessary to establish a relationship of control between the hospital and the doctor were not exclusively within the hospital’s knowledge and control, and even if further disclosure were needed, plaintiffs’ failure to ascertain the facts, despite several months notice of the motion, was due to their own inaction (see, Meath v Mishrick, 68 NY2d 992, 994). We have considered plaintiffs’ remaining argument and find it to be without merit. Concur— Wallach, J. P., Kupferman, Asch and Smith, JJ.