Opinion
13635 Index No. 805368/14 Case No. 2020-02848
04-22-2021
Theodore GAMBACORTA, Plaintiff–Respondent, v. Christopher GIORDANO, M.D., et al., Defendants, Ron Chay, M.D., et al., Defendants–Appellants.
McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco and Colin Rathje of counsel), for Ron Chay, M.D., appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel Lei of counsel), for Staten Island University Hospital, appellant. Krentsel Guzman Herbert, LLP, New York (Marcia Raicus of counsel), for respondent.
McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco and Colin Rathje of counsel), for Ron Chay, M.D., appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel Lei of counsel), for Staten Island University Hospital, appellant.
Krentsel Guzman Herbert, LLP, New York (Marcia Raicus of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about March 12, 2020, which, to the extent appealed from, denied defendant Ron Chay, M.D.'s motion for summary judgment dismissing the complaint as against him and denied defendant Staten Island University Hospital's (SIUH) motion for summary judgment dismissing so much of the complaint as sought to hold it vicariously liable for the alleged departures of nonparty Dr. Neville Mobarakai, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.
The record demonstrates that Dr. Chay's responsibility to diagnose and treat plaintiff's alleged paraspinal infection and abscess was assumed by Dr. Mobarakai, a consulting infectious disease specialist, who followed plaintiff's condition throughout the relevant treatment (see Perez v. Edwards, 107 A.D.3d 565, 566, 968 N.Y.S.2d 37 [1st Dept. 2013], lv denied 22 N.Y.3d 862, 2014 WL 593204 [2014] ; see generally Burtman v. Brown, 97 A.D.3d 156, 161–62, 945 N.Y.S.2d 673 [1st Dept. 2012] ).
Plaintiff contends that SIUH is vicariously liable for any negligence of Dr. Chay. However, the motion court found that SIUH could not be held vicariously liable for any negligence of Dr. Chay because he was not its employee, and plaintiff did not appeal from the court's order. Accordingly, even assuming Dr. Chay could be found negligent, plaintiff has no claim against SIUH based on Dr. Chay's acts or omissions.
SIUH cannot be held vicariously liable for any acts or omissions of Dr. Mobarakai, because plaintiff failed to identify Dr. Mobarakai in his complaint or bill of particulars as a person for whose negligence SIUH could be liable (see Harty v. Lenci, 294 A.D.2d 296, 298, 743 N.Y.S.2d 97 [1st Dept. 2002] ).