Zimmerly v. Good Samaritan Hospital

261 A.D.2d 614, 690 N.Y.S.2d 718, 1999 N.Y. App. Div. LEXIS 5683

Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Cannavo, J.), entered May 27, 1998, which, upon a prior order granting the motion of the defendant Craig L. Smestad, s/h/a Craig L. Smestat, for summary judgment, dismissed the complaint insofar as asserted against that defendant.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted the motion of the defendant Craig L. Smestad, s/h/a Craig L. Smestat (hereinafter Dr. Smestad) for summary judgment dismissing the complaint. “ [I] t is generally recognized that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship” (Megally v LaPorta, 253 AD2d 35, 40; see, Finnegan v Devries, 235 AD2d 454; Ellis v Peter, 211 AD2d 353, 355; Lee v City of New York, 162 AD2d 34, 36). Such a relationship “is created when the professional services of a physician are rendered to and accepted by another for the purposes of medical or surgical treatment” (Lee v City of New York, supra, at 36; see, Miller v Sullivan, 214 AD2d 822, 823).

In the instant case, Dr. Smestad established that there was no physician-patient relationship between himself and the decedent and, accordingly, that he was entitled to judgment as a matter of law (see, Leon v Southside Hosp., 227 AD2d 384, 385; Ingber v Kandler, 128 AD2d 591). In opposition to Dr. Smestad’s motion, the plaintiff failed to raise a triable issue of fact.

The plaintiff’s remaining contentions are without merit. Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.