Opinion
2020–01500 Index No. 521431/16
12-06-2023
Klara KHUTORYANSKAYA, respondent, v. LASER & MICROSURGERY, P.C., etc., et al., defendants, Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center, et al., appellants.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, NY (Judy C. Selmeci and Lori Semlies of counsel), for appellant Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center. Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success, NY (Nicholas Tam of counsel), for appellant Alexander Rabinovich. Karasik Law Group, P.C., Brooklyn, NY (Alexander Karasik of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, NY (Judy C. Selmeci and Lori Semlies of counsel), for appellant Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center.
Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success, NY (Nicholas Tam of counsel), for appellant Alexander Rabinovich.
Karasik Law Group, P.C., Brooklyn, NY (Alexander Karasik of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, the defendant Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center, appeals, and the defendant Alexander Rabinovich separately appeals, from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated January 23, 2020. The order, insofar as appealed from by the defendant Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center, denied that branch of that defendant's motion which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against it. The order, insofar as appealed from by the defendant Alexander Rabinovich, denied that branch of that defendant's separate motion which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff underwent surgery performed by the defendant Alexander Rabinovich, at a medical facility operated by the defendant Brooklyn Eye Surgery Center, LLC, doing business as Brooklyn Eye Surgery Center (hereinafter BESC). Subsequently, the plaintiff commenced this action against BESC, Rabinovich, and others, inter alia, to recover damages for medical malpractice. BESC and Rabinovich separately moved, among other things, for summary judgment dismissing that cause of action insofar as asserted against each of them. The Supreme Court denied those branches of the motions. BESC and Rabinovich appeal. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries (see Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d 858, 859–860, 166 N.Y.S.3d 676 ; Larcy v. Kamler, 185 A.D.3d 564, 564–565, 127 N.Y.S.3d 122 ). "On a motion for summary judgment, the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties" ( Rosario v. Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 A.D.3d 1426, 1427, 128 N.Y.S.3d 906 ; see Wiater v. Lewis, 197 A.D.3d 782, 783, 153 N.Y.S.3d 176 ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" ( Rich v. Donnenfeld, 191 A.D.3d 909, 910, 138 N.Y.S.3d 381 [internal quotation marks omitted]).
The Supreme Court properly denied that branch of BESC's motion which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against it. Generally speaking, a medical facility may not be held vicariously liable for the negligence of a private attending physician chosen by the patient (see Doria v. Benisch, 130 A.D.3d 777, 777, 14 N.Y.S.3d 95 ; Tomeo v. Beccia, 127 A.D.3d 1071, 1073, 7 N.Y.S.3d 472 ). Moreover, so long as the resident physicians and nurses employed by the medical facility have merely carried out that private attending physician's orders, a medical facility may not be held vicariously liable for resulting injuries (see Seiden v. Sonstein, 127 A.D.3d 1158, 1160, 7 N.Y.S.3d 565 ). These rules will not, however, shield a medical facility from liability in three situations. The first is when the private physician's order "so greatly deviates from normal [medical] practice that the [medical facility's employees] should be held liable for failing to intervene" ( Bellafiore v. Ricotta, 83 A.D.3d 632, 633, 920 N.Y.S.2d 373 ). Second, a medical facility may be held liable when its employees have committed independent acts of negligence (see Tomeo v. Beccia, 127 A.D.3d at 1073, 7 N.Y.S.3d 472 ; Nasima v. Dolen, 149 A.D.3d 759, 760, 51 N.Y.S.3d 189 ). Third, a medical facility may be held liable for the negligence of a private, nonemployee physician on a theory of ostensible or apparent agency (see Sampson v. Contillo, 55 A.D.3d 588, 590, 865 N.Y.S.2d 634 ). Here, BESC established its prima facie entitlement to judgment as a matter of law by submitting proof indicating that Rabinovich was an independent contractor and not an employee of BESC and that BESC may not be held vicariously liable under a theory of apparent or ostensible agency by estoppel (see Weiszberger v. KCM Therapy, 189 A.D.3d 1121, 1122–1123, 137 N.Y.S.3d 53 ), and by demonstrating that none of its employees committed any independent act of negligence (see Doria v. Benisch, 130 A.D.3d at 778, 14 N.Y.S.3d 95 ). However, viewing the evidence in the light most favorable to the plaintiff (see Stukas v. Streiter, 83 A.D.3d 18, 30, 918 N.Y.S.2d 176 ), it was sufficient to raise a triable issue of fact as to whether BESC personnel committed an independent act that constituted a departure from accepted medical practice proximately causing the plaintiff's alleged injuries (see Seiden v. Sonstein, 127 A.D.3d at 1160–1161, 7 N.Y.S.3d 565 ; Motto v. Beirouti, 90 A.D.3d 723, 724–725, 935 N.Y.S.2d 307 ). Contrary to BESC's contention, the plaintiff did not raise a new theory of liability in opposition to its motion for summary judgment (see Alao v. Richmond Univ. Med. Ctr., 213 A.D.3d 722, 724, 183 N.Y.S.3d 144 ; Maestri v. Pasha, 198 A.D.3d 632, 635, 153 N.Y.S.3d 615 ; Rich v. Donnenfeld, 191 A.D.3d at 910, 138 N.Y.S.3d 381 ; cf. Larcy v. Kamler, 185 A.D.3d at 566, 127 N.Y.S.3d 122 ).
The Supreme Court also properly denied that branch of Rabinovich's separate motion which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Schumacher v. Pucciarelli, 161 A.D.3d 1205, 1205, 78 N.Y.S.3d 217 ; see Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ). "Thus, a motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Chimbo v. Bolivar, 142 A.D.3d 944, 945, 37 N.Y.S.3d 339 [internal quotation marks omitted]). Here, Rabinovich established his prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against him by demonstrating that there was no departure from good and accepted medical practice and that any alleged departure did not proximately cause the plaintiff's injuries (see Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d at 859–860, 166 N.Y.S.3d 676 ). However, since the parties adduced conflicting medical expert opinions, summary judgment was not appropriate (see Rich v. Donnenfeld, 191 A.D.3d at 910, 138 N.Y.S.3d 381 ; Kunic v. Jivotovski, 121 A.D.3d 1054, 1055, 995 N.Y.S.2d 587 ).
BESC's and Rabinovich's remaining contentions are without merit.
IANNACCI, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.