Opinion
March 8, 1999
Appeal from the Supreme Court, Suffolk County (D'Emilio, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.
In 1984 the decedent came under the care of the defendant Jeffrey Schorr, M.D., a doctor affiliated with but not employed by the appellant, Southampton Hospital Associates (hereinafter the hospital). Schorr removed the decedent's right kidney, which was cancerous. To monitor the decedent's condition to assure that his cancer did not recur or metastasize, Schorr prescribed a course of semi-annual CAT scans and follow-up visits. The CAT scans were performed approximately every six months at the hospital from June 1985 through June 1991 by Radiological Health Services, P. C., now Southampton Radiology, P. C. (hereinafter SHR). In June 1991 a bone scan led to the discovery that the cancer had spread to the decedent's abdomen. The decedent died in February 1993.
The plaintiff, individually and as administrator of the estate of the decedent, thereafter commenced this action to recover damages for medical malpractice. The plaintiff alleged that, beginning December 1989, CAT scans indicated abnormal abdominal growths that the defendants negligently failed to detect, investigate, and treat. After issue was joined and various discovery conducted, the hospital moved for summary judgment dismissing the complaint insofar as asserted against it. The hospital argued that it had not rendered any medical treatment to the decedent, and that all of the treatment at issue was rendered by SHR and/or Schorr. The hospital further argued that it could not be held vicariously liable for the alleged negligence of Schorr because he was merely affiliated with the hospital, not an employee, and it could not be held vicariously liable for the negligence of SHR because SHR was an independent corporation with its own employees which merely performed radiological services for the hospital pursuant to a contract. In the order appealed from, the Supreme Court denied the hospital's motion. We now reverse.
In opposition to the hospital's prima facie showing of entitlement to judgment as a matter of law as to any vicarious liability concerning the alleged negligence of Schorr, the plaintiff failed to raise a triable issue of fact ( see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79-81). Although the decedent was originally admitted through the emergency room of the hospital, there is no competent proof in the record that the decedent believed that he was receiving care from the hospital in general, as opposed to Schorr specifically. Indeed, at an examination before trial, the plaintiff testified that the decedent was seen by Schorr at her request and the decedent's request based on a recommendation of a friend. Further, the alleged negligence at issue concerns the follow-up visits to monitor the cancer, not the initial emergency room visits or surgery. The plaintiff testified that all such follow-up visits occurred at Schorr's private offices. In sum, the plaintiff failed to raise a triable issue of fact that the hospital may be held vicariously liable for the alleged negligence of Schorr.
Further, the hospital cannot be held vicariously liable for the alleged negligence of SHR since an action against SUR is time-barred. This action was commenced on August 23, 1993. The last alleged act of negligence by SHR was December 19, 1990, which is not within the relevant two and one-half-year period of limitations ( see, CPLR 214-a). Further, the Statute of Limitations was not tolled. The plaintiff failed to raise a triable issue of fact either that SHR was engaged in a continuous course of treatment of the decedent that extended to within the limitations period ( see, Meath v. Mishrick, 68 N.Y.2d 992; McDermott v. Torre, 56 N.Y.2d 399; Davis v. City of New York, 38 N.Y.2d 257; Sweet v. Austin, 226 A.D.2d 942; Noack v. Symenow, 132 A.D.2d 965), or that an agency or other relevant relationship existed between Schorr and SHR sufficient to support a finding that any continuous course of treatment rendered to the decedent by Schorr operated to toll the Statute of Limitations as against SHR ( see, Meath v. Mishrick, supra; McDermott v. Torre, supra; Cox v. Kingsboro Med. Group, 214 A.D.2d 150, affd 88 N.Y.2d 904; Meier v. Huntington Hosp. Assn., 186 A.D.2d 637).
In any event, even if an action against SHR was not time-barred, summary judgment in favor of the hospital would still be warranted. In opposition to the hospital's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact that the hospital may be estopped from denying liability for the alleged negligence of SHR, an independent laboratory, or that the hospital exercised actual direction or control over SUR ( see, Gunther v. Staten Is. Hosp., 226 A.D.2d 427; Sarivola v. Brookdale Hosp. Med. Ctr., 204 A.D.2d 245).
Moreover, the plaintiff's mere hope that additional discovery will reveal something helpful to her case concerning the hospital's vicarious liability for the alleged negligence of SHR does not provide a basis for postponing determination of the motion at bar ( see, Bryan v. City of New York, 206 A.D.2d 448; Plotkin v. Franklin, 179 A.D.2d 746). The action was pending for over four years before the motion was made, and the plaintiff failed to avail herself of any opportunities to obtain disclosure of the necessary facts ( see, Meath v. Mishrick, 68 N.Y.2d 992, supra; Douglas Manor Assn. v. Alimaras, 215 A.D.2d 522).
Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.