Doe v Goldweber

Doe v Goldweber 2013 NY Slip Op 08129 Decided on December 5, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 5, 2013
Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Gische, JJ. 11274-
108647/07 11275

[*1]"Jane Doe," etc., Plaintiff-Appellant,

v

Brian A. Goldweber, M.D., et al., Defendants, Somerset Surgical Associates, P.C., et al., Defendants-Respondents.




Morrison & Wagner, LLP, New York (Eric H. Morrison of
counsel), for appellant.
Ellenberg & Partners, LLP, New York (Charles Lim of
counsel), for Somerset Surgical Associates, P.C., Frank Cohen, M.D.,
Norman Sohn, M.D., Michael A. Weinstein, M.D., respondents.
Martin Clearwater & Bell LLP, New York (Arjay G. Yao and
John L.A. Lyddane of counsel), for Abbe J. Carni, M.D. and
Abbe J. Carne, M.D., P.C., respondents.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about December 15, 2011, which, to the extent appealed from as limited by the briefs, granted defendants Somerset Surgical Associates, P.C. and Frank Cohen, M.D.'s motion to dismiss plaintiff's negligent hiring claim as against them, unanimously affirmed, without costs. Order, same court and Justice, entered June 5, 2012, which granted defendants Abbe J. Carni, M.D. and Abbe J. Carni, M.D., P.C.'s motion to reargue the portion of the December 15, 2011 order denying their motion for summary judgment dismissing the negligent hiring claim as asserted against them and, upon reargument, dismissed such claim, unanimously modified, on the law, to deny dismissal, and otherwise affirmed, without costs.

Plaintiff alleges that she contracted the hepatitis C virus as a result of the medical malpractice of Dr. Brian Goldweber, an anesthesiologist, arising from his reuse of a syringe from a source patient in a vial of propofol, in breach of sterile protocols, and then administering plaintiff propofol from the same contaminated vial. At the time, plaintiff was undergoing a colonoscopy performed by Dr. Frank Cohen at the ambulatory surgery offices of Somerset Surgical Associates, P.C. Dr. Goldweber's services were provided by Abbe J. Carni, M.D., P.C., an anesthesiology placement company owned by Dr. Abbe Carni.

In the absence of any indication that Somerset and Dr. Cohen were on notice of Dr. Goldweber's propensity to commit the conduct alleged, the court properly dismissed the negligent hiring claim asserted as against them (see White v Hampton Mgt. Co., L.L.C., 35 AD3d [*2]243, 244 [1st Dept 2006]; see also Sandra M. v St. Luke's Roosevelt Hosp. Ctr., 33 AD3d 875, 878, 881 [2d Dept 2006]). However, triable issues of fact exist as to whether Abbe J. Carni, M.D., P.C. may be liable for negligently hiring Dr. Goldweber. Dr. Carni, acting for Abbe J. Carni, M.D., P.C., failed to investigate a seven-month gap in Dr. Goldweber's employment, which would have revealed his disciplinary history, including a three-year suspension from the practice of medicine, stayed by consent, arising from his negligent administration of anesthesia (see Corbally v Sikras Realty Co., 161 AD2d 107 [1st Dept 1990]). Indeed, Dr. Carni admitted that a gap in employment of a few months would have raised a red flag as to potential disciplinary problems, and should have been investigated. An employer may be liable for negligent hiring when it knew or should have known of the employee's propensity to commit injury even if the injury committed was not identical to the prior injury (see e.g. T.W. v City of New York, 286 AD2d 243, 245-246 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2013

CLERK