Parrilla v Buccellato

Parrilla v Buccellato 2013 NY Slip Op 00069 Decided on January 9, 2013 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 January 9, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SYLVIA HINDS-RADIX, JJ.
2011-09045
(Index No. 500001/08)

[*1]Miriam Parrilla, etc., appellant,

v

John Buccellato, etc., defendant, Brooklyn Hospital Center, respondent.




Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Dana E.
Heitz and Joseph Awad of counsel), for appellant.
Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley
and Rita F. Aronov of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated June 29, 2011, as granted that branch of the motion of the defendant Brooklyn Hospital Center which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's decedent by a nonparty physician.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Brooklyn Hospital Center which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's decedent by a nonparty physician is denied.

Following her father's death, the plaintiff, as administrator of his estate, commenced a medical malpractice and wrongful death action against, among others, Brooklyn Hospital Center (hereinafter BHC). However, the plaintiff failed to name one of the attending physicians in charge of her father's care as a defendant before the statute of limitations had run. BHC moved, inter alia, for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for that nonparty physician's actions, arguing that the plaintiff did not have a viable cause of action against him. The Supreme Court agreed, and granted that branch of BHC's motion.

Contrary to the Supreme Court's conclusion, where, as here, a plaintiff timely commences a medical malpractice action against a defendant hospital on respondeat superior principles, the failure to name the individual doctors upon whom the claim is predicated as defendants within the applicable statute of limitations period "does not compel dismissal of the plaintiff's vicarious liability claim against the hospital" (Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 55 AD3d 821, 823; cf. Magriz v St. Barnabas Hosp., 43 AD3d 331; DiFilippi v Huntington Hosp., 203 AD2d 321; Walsh v Faxton-Children's Hosp., 192 AD2d 1106). Based on the foregoing, the Supreme Court erred in granting that branch of BHC's motion which was for [*2]summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's father by the nonparty physician.
SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court