Opinion
2014-03-5
Yevgeniy GOLER, et al., appellants, v. Alan SONSKY, etc., et al., defendants, Mario DiBlasio, etc., et al., respondents.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellants. Schuchman Schwarz & Zoldan–Leite, LLP, New York, N.Y. (Joseph K. Schwarz of counsel), for respondent Mario DiBlasio.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellants. Schuchman Schwarz & Zoldan–Leite, LLP, New York, N.Y. (Joseph K. Schwarz of counsel), for respondent Mario DiBlasio.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for respondent New York Community Hospital.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated April 2, 2012, as granted the separate motions of the defendants Mario DiBlasio and New York Community Hospital for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
In this medical malpractice action, the plaintiffs contend that the Supreme Court erred in granting the motion of the defendant Mario DiBlasio, a radiologist, for summary judgment dismissing the complaint insofar as asserted against him. Their contention is without merit. DiBlasio's submissions in support of his motion, which included the affidavit of an expert radiologist, established that he did not depart from accepted medical practice in his treatment of the plaintiff Yevgeniy Goler ( see Rivers v. Birnbaum, 102 A.D.3d 26, 44–46, 953 N.Y.S.2d 232;Ahmed v. New York City Health & Hosps. Corp., 84 A.D.3d 709, 711, 922 N.Y.S.2d 202). The affirmation of the plaintiffs' expert radiologist and the affidavit of the plaintiffs' expert surgeon submitted in opposition to the motion were insufficient to raise a triable issue of fact.
In addition, the Supreme Court properly granted the motion of New York Community Hospital (hereinafter NYCH) for summary judgment dismissing the complaint insofar as asserted against it. Because DiBlasio did not commit malpractice, no basis exists for proceeding against NYCH under a vicarious liability theory ( see Simmons v. Brooklyn Hosp. Ctr., 74 A.D.3d 1174, 1178–1179, 903 N.Y.S.2d 521).
In light of our determination, we need not address the parties' remaining contentions. MASTRO, J.P., DICKERSON, LOTT and HINDS–RADIX, JJ., concur.