Opinion
July 21, 1997
Appeal from the Supreme Court, Kings County (Rosenberg, J.).
Ordered that the appeal from the purported order is dismissed as it is an appeal from a trial ruling embodied in an extract of the trial minutes, which is not appealable; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendants are awarded one bill of costs.
The trial court correctly determined that the plaintiff failed to make out a prima facie case as to the defendant Brookdale Hospital Medical Center (hereinafter the Hospital), and dismissed the plaintiff's complaint insofar as asserted against that defendant. Under the doctrine of respondeat superior, a hospital may be vicariously liable for the medical malpractice of physicians who act in an employment or agency capacity (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79; Sledziewski v. Cioffi, 137 A.D.2d 186). The premise for imputing liability is the element of control (see, Kavanaugh v. Nussbaum, 71 N.Y.2d 535; Sledziewski v. Cioffi, supra). Here, the evidence established that the defendant doctor Joel Teicher did not treat the plaintiff as either an employee or agent of the Hospital, but as an independent treating physician responsible for his own negligence, if any. The plaintiff acknowledged that he was referred directly to Teicher by his treating physician, and thereafter, the plaintiff met with Teicher at his private office. The plaintiff also acknowledged that Teicher performed the surgery himself, attended by two orthopedic residents. Teicher also continued to treat the plaintiff in his private office following the latter's discharge from the Hospital.
The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.
Miller, J. P., Friedmann, Krausman and Florio, JJ., concur.