Capogrosso v Columbia Presbyt. Hosp.

[*1] Capogrosso v Columbia Presbyt. Hosp. 2005 NY Slip Op 50162(U) Decided on February 16, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570018/04

ELEANOR CAPOGROSSO, Plaintiff-Appellant,

against

COLUMBIA PRESBYTERIAN HOSPITAL, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, New York County, entered September 11, 2002 (Karen S. Smith, J.) which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, and from an order of the same court entered July 9, 2002 (Donna G. Recant, J.) which denied plaintiff's motion to amend the complaint by adding a demand for punitive damages.

PER CURIAM:

Order entered September 11, 2002 (Karen S. Smith, J.), affirmed, with $10 costs.

Appeal from order entered July 9, 2002 (Donna G. Recant, J.) dismissed, without costs, as academic.

The action, seeking to impose liability upon the defendant hospital for the alleged negligence of an attending physician in administering a diagnostic test, was properly dismissed, in view of plaintiff's failure to come forward with any competent proof to rebut defendant's prima facie showing that the physician was not in its employ (see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). Mere affiliation with a hospital is insufficient to impute a doctor's negligence to a hospital (id.; Nagengast v Samaritan Hosp., 211 AD2d 878, 879 [1995]), and there is no indication in plaintiff's deposition testimony or elsewhere in the record that the physician in [*2]question had been provided by the hospital or was acting as its agent during the testing procedure (see Bevelacqua v Yonkers Gen. Hosp., 10 AD3d 668 [2004]; cf. Santiago v Brandeis, 309 AD2d 621 [2003]).

In light of our determination, the appeal from the order entered July 9, 2002, which denied plaintiff's motion for leave to amend her complaint by adding a demand for punitive damages, has been rendered academic.

This constitutes the decision and order of the Court.
Decision Date: February 16, 2005