Opinion
1035, 805159/12.
05-03-2016
John C. BARONE, Plaintiff–Respondent, v. DELLO RUSSO LASER VISION MEDICAL CARE, PLLC, Defendant, Laser Eye Practice of New York, PLLC, et al., Defendants–Appellants.
Marulli, Lindenbaum & Tomaszewski, LLP, New York (Richard O. Mannarino of counsel), for appellants. Law Offices of Marius C. Wesser, P.C., New York (Marius C. Wesser of counsel), for respondent.
Marulli, Lindenbaum & Tomaszewski, LLP, New York (Richard O. Mannarino of counsel), for appellants. Law Offices of Marius C. Wesser, P.C., New York (Marius C. Wesser of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, MOSKOWITZ, KAHN, JJ.
Opinion Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 24, 2015, which denied the motion of defendants Laser Eye Practice of New York, PLLC and Jeffrey Dello Russo, M.D. for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this medical malpractice action stemming from Lasik eye surgery, Dr. Jeffrey Dello Russo satisfied his burden on summary judgment by submitting evidence that he had no further involvement with plaintiff after having performed initial corneal topographies, the performance and analysis of which plaintiff concedes did not deviate from accepted medical practice (see Kristal R. v. Nichter, 115 A.D.3d 409, 411, 981 N.Y.S.2d 399 [1st Dept.2014] ). In opposition, plaintiff failed to raise an issue of fact as to whether Dr. Jeffrey Dello Russo had any involvement with the subsequent topography performed on plaintiff, rendering his expert's conclusion that Dr. Jeffrey Dello Russo should have known plaintiff was a poor candidate for Lasik surgery as unsupported by the record (Feaster–Lewis v. Rotenberg, 93 A.D.3d 421, 422, 939 N.Y.S.2d 421 [1st Dept.2012], lv. denied 19 N.Y.3d 803, 2012 WL 1591443 [2012] ; see Bacani v. Rosenberg, 74 A.D.3d 500, 502, 903 N.Y.S.2d 30 [1st Dept.2010], lv. denied 15 N.Y.3d 708, 2010 WL 3632205 [2010] ).
In that no malpractice has been shown against Dr. Jeffrey Dello Russo, there can be no vicarious liability to impute to defendant Laser Eye Practice of New York (see Lopez v. Master, 58 A.D.3d 425, 870 N.Y.S.2d 306 [1st Dept.2009] ).