Jean Charles v Jamaica Hospital

Charles v Jamaica Hosp. 2006 NY Slip Op 04794 [19 AD3d 1185] Decided on June 13, 2006 Appellate Division, Second 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 June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEPHEN G. CRANE, J.P.
GLORIA GOLDSTEIN
DANIEL F. LUCIANO
MARK C. DILLON, JJ.
2005-00626 DECISION & ORDER

[*1]Jean Charles, etc., et al., appellants,

v

Jamaica Hospital, et al., defendants, Moise Maurice Abitol, respondent. (Index No. 1283/99)




Warren S. Hecht, Forest Hills, N.Y., for appellants.
Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford,
N.Y. (Lauren B. Bristol of counsel),
for respondent.

In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Dollard, J.), dated November 22, 2004, as, upon an order of the same court dated May 6, 2004, inter alia, granting that branch of the motion of the defendant Moise Maurice Abitol which was for summary judgment dismissing the complaint insofar as asserted against him, is in favor of that defendant and against them.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiffs' contention that the summary judgment motion of the defendant Moise Maurice Abitol should not have been considered on the ground that it was untimely pursuant to CPLR 3212(a) is improperly raised for the first time on appeal (see LaBella v Allstate Ins. Co., 261 AD2d 367, 368). In any event, Abitol established good cause for the delay.

Abitol established his entitlement to judgment as a matter of law on the ground that there was no doctor-patient relationship between him and the plaintiff's decedent and no basis to impose vicarious liability on him (see Alvarez v Prospect Hosp., 68 NY2d 320; Sawh v Schoen, 215 AD2d 291, 293-294). In opposition, the plaintiffs failed to raise a triable issue of fact. Therefore, [*2]summary judgment was properly granted to Abitol.
CRANE, J.P., GOLDSTEIN, LUCIANO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court