Hilsdorf v. Tsioulias

In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered November 15, 2013, as granted that branch of the motion of the defendant New York Queens Hospital 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 nonparty physician Maura Noordhoorn.

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

New York Hospital Medical Center of Queens, sued herein as New York Queens Hospital (hereinafter the hospital), made a prima facie showing that, in connection with medical treatment rendered to the plaintiff's decedent, it was not vicariously liable for any alleged acts or omissions of nonparty physician Maura Noordhoorn because Noordhoorn was not its employee ( see Loaiza v. Lam, 107 A.D.3d 951, 952, 968 N.Y.S.2d 548; Sullivan v. Sirop, 74 A.D.3d 1326, 1328, 905 N.Y.S.2d 240; Belak–Redl v. Bollengier, 74 A.D.3d 1110, 1111, 903 N.Y.S.2d 508; Sampson v. Contillo, 55 A.D.3d 588, 590–591, 865 N.Y.S.2d 634). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the hospital could nonetheless be held vicariously liable for Noordhoorn's alleged malpractice under a theory of apparent or ostensible agency ( see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823; Sullivan v. Sirop, 74 A.D.3d at 1328, 905 N.Y.S.2d 240; Thurman v United Health Servs. Hosps. Inc., 39 A.D.3d 934, 936–937, 833 N.Y.S.2d 702). Accordingly, the Supreme Court properly granted that branch of the hospital's motion which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered by Noordhoorn to the plaintiff's decedent.