| Deltoro v Arya |
| 2007 NY Slip Op 08031 [44 AD3d 896] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Josephine Deltoro, Appellant, v Yashpal Arya, Defendant,and Wyckoff Heights Medical Center, Respondent. |
—[*1] Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn Hajek and Kevin C. Petkos ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Kings County (Levine, J.), dated March 31, 2005, which granted themotion of the defendant Wyckoff Heights Medical Center for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantWyckoff Heights Medical Center for summary judgment dismissing the complaint insofar asasserted against it is denied.
Under the doctrine of respondeat superior, a hospital may be vicariously liable for themedical malpractice of physicians who act in an employment or agency capacity (see Hill vSt. Clare's Hosp., 67 NY2d 72, 79 [1986]; Bing v Thunig, 2 NY2d 656, 666 [1957]).The determination of whether a particular act was within the scope of employment is heavilydependent on factual considerations and is ordinarily a question for the jury (see Patterson vKhan, 240 AD2d 644 [1997]).
Here, the evidence presented by the defendant Wyckoff Heights Medical Center (hereinafterWyckoff) was insufficient to demonstrate its entitlement to judgment as a matter of law on theground that the defendant Yashpal Arya was not its employee or agent (see Zuckerman v Cityof New York, 49 NY2d 557 [1980]). Rather, it is undisputed that Arya was an employee ofWyckoff. Since [*2]triable issues of fact remain as to whetherArya was present at the time the alleged malpractice occurred, and whether he was acting in thescope of his employment as Director of Gastroenterology at Wyckoff, the Supreme Court shouldhave denied Wyckoff's motion for summary judgment dismissing the complaint insofar asasserted against it (see Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282AD2d 650, 650-651 [2001]). Spolzino, J.P., Santucci, Balkin and Dickerson, JJ., concur.