Opinion
March 29, 1993
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the order is affirmed, with costs.
The defendant hospital moved for summary judgment on the ground that the decedent was at all times under the care of the codefendant Dr. Jitendra C. Shah, a private attending physician, and that its staff properly followed his orders. As the moving party, the hospital was required to make a prima facie showing of entitlement to judgment as a matter of law, presenting sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). We conclude that summary judgment was properly denied.
It is undisputed that the decedent had no prior doctor-patient relationship with Dr. Shah and that she entered the hospital through the emergency room seeking treatment from the hospital, rather than from a particular doctor. It is also undisputed that Dr. Shah was an "on call" physician who was initially assigned by the hospital to examine the decedent in the emergency room. We find that the hearsay allegations of the hospital's attorney regarding the decedent's relationship with Dr. Shah lacks probative value with respect to the issue of whether the hospital is vicariously liable for his acts. Moreover, under the circumstances of this case, the hospital administrator's denial of an employee-employer relationship between the hospital and Dr. Shah is insufficient to establish as a matter of law that the hospital cannot be held vicariously liable for Dr. Shah's alleged acts of negligence (see, Augeri v. Massoff, 134 A.D.2d 307; see also, Hill v. St. Clare's Hosp., 67 N.Y.2d 72; Noble v. Porter, 188 A.D.2d 1066; Mangan v. White Plains Hosp. Med. Ctr., 136 A.D.2d 608; Felice v. St. Agnes Hosp., 65 A.D.2d 388).
Furthermore, aside from the issue of the vicarious liability for Dr. Shah's acts, we find that the evidence presented by the hospital was insufficient to establish that the plaintiff had no cause of action against it for the alleged negligent acts of its employees. The affidavit by its medical expert was comprised of bare conclusory statements and did not attempt to refute the specific factual allegations of malpractice in the bill of particulars (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Graber v. Zwanger, 175 A.D.2d 911).
Accordingly, summary judgment was properly denied. Sullivan, J.P., Rosenblatt, Lawrence and O'Brien, JJ., concur.