Opinion
8724 Index 21457/13E
03-14-2019
Mettie Alicia CHAPMAN, Plaintiff–Respondent, v. Winifred S. TOVAR, M.D., et al., Defendants, St. Barnabas Hospital, Defendant–Appellant.
Garbarini & Scher, P.C., New York (Rita Aronov of counsel), for appellant. Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondent.
Garbarini & Scher, P.C., New York (Rita Aronov of counsel), for appellant.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondent.
Richter, J.P., Gische, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered February 22, 2018, which, insofar as appealed from as limited by the briefs, in this action alleging medical malpractice, denied the motion of defendant St. Barnabas Hospital for summary judgment dismissing plaintiff's claim that St. Barnabas was vicariously liable for the negligence of defendant Dr. Tovar, unanimously affirmed, without costs.
St. Barnabas failed to make a prima facie showing of entitlement to summary judgment by demonstrating the absence of any material issues of fact as to whether Dr. Tovar was acting as its agent (see Malcolm v. Mount Vernon Hosp. , 309 A.D.2d 704, 706, 766 N.Y.S.2d 185 [1st Dept. 2003], lv dismissed 2 N.Y.3d 793, 781 N.Y.S.2d 291, 814 N.E.2d 463 [2004] ). St. Barnabas also failed to show that the plaintiff could not have reasonably believed Dr. Tovar was acting at the hospital's behest ( Malcolm at 706, 766 N.Y.S.2d 185 ). Plaintiff and Dr. Tovar had no relationship prior to the emergency room visit that led to St. Barnabas referring plaintiff to Dr. Tovar, and questions of fact exist as to whether plaintiff was aware of the nature of Dr. Tovar's affiliation with St. Barnabas (see Shafran v. St. Vincent's Hosp. & Med. Ctr. , 264 A.D.2d 553, 557–558, 694 N.Y.S.2d 642 [1st Dept. 1999] ).