Fowler v Buffa

Fowler v Buffa 2017 NY Slip Op 04213 Decided on May 25, 2017 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 May 25, 2017
Tom, J.P., Sweeny, Richter, Kapnick, Webber, JJ.
4116 4115

[*1]Norma Fowler, Plaintiff-Respondent, —

v

Salvatore D. Buffa, M.D., et al., Defendants-Appellants, Anurag Shrivastava, M.D., Defendant.

Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for Salvatore D. Buffa, M.D., Victoria A. Brand, CRNA and Alliance Anesthesiology Associates, P.L.L.C., appellants.

James W. Tuffin, Islandia, for Surgicare Ambulatory Center, Inc., appellant.

Law Office of Robert F. Danzi, Jericho (Christine Coscia of counsel), for respondent.

Orders, Supreme Court, Bronx County (Stanley Green, J.), entered October 3, 2016, which denied the motions of defendants Salvatore D. Buffa, M.D., Victoria A. Brand, CRNA, and Alliance Anesthesiology Associates, P.L.L.C. (Alliance), and defendant Surgicare Ambulatory Center, Inc. (Surgicare) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In this medical malpractice action, defendants Buffa, Brand, and Alliance failed to establish entitlement to judgment as a matter of law as to plaintiff's claims that, inter alia, Dr. Buffa failed to devise an anesthesiology plan sufficient to sedate and anesthetize plaintiff during her cataract surgery, and that Brand failed to notice and address that plaintiff was experiencing increasing levels of pain during the procedure (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The court also correctly denied summary judgment to Surgicare. It is unclear from the record, in which Surgicare is listed in plaintiff's informed consent agreement as administering and directing anesthesia, whether Dr. Buffa was acting as an employee of, or on behalf of, Surgicare when he created the anesthesia plan for plaintiff (see Brown v Speaker, 33 AD3d 446, 447 [1st Dept 2006]; Harrington v Neurological Inst. of Columbia Presbyt. Med. Ctr., 254 AD2d 129, 130 [1st Dept 1998]).

We have considered the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 25, 2017

CLERK