| Trivedi v Golub |
| 2007 NY Slip Op 09576 [46 AD3d 542] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Deepak Trivedi, Appellant, v Robert Golub, Defendant,and Flushing Hospital Medical Center, Respondent. |
—[*1] Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and Dennis J. Dozis ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Queens County (Agate, J.), dated December 7, 2006, which granted themotion of the defendant Flushing Hospital Medical Center for summary judgment dismissing thecomplaint insofar as asserted against it on the ground that the complaint insofar as assertedagainst the defendant Robert Golub, for whom it was allegedly vicariously liable, had beendismissed for improper service of process.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint insofar as asserted against the defendant Flushing HospitalMedical Center is denied.
In an action against an employer based upon the doctrine of respondeat superior, theemployee allegedly committing the tortious conduct is not a necessary party (see Rock vCounty of Suffolk, 212 AD2d 587 [1995]; Shaw v Village of Hempstead, 20 AD2d663 [1964]; Wiedenfeld v Chicago & N.W. Transp. Co., 252 NW2d 691 [Iowa 1977]).Accordingly, the fact that personal jurisdiction was not acquired over the defendant hospital'semployee, the defendant Dr. Robert Golub, did not warrant dismissal of the action against thehospital. We further note that the action against Golub was dismissed for lack of personaljurisdiction, and not on the merits. Moreover, while it is true that[*2]"[i]n the absence of any wrongful or actionable underlying conduct[by an employee] there can be no imposition of vicarious liability against any alleged employer. . . pursuant to the doctrine of respondeat superior" (Wende C. v United Methodist Church,N.Y. W. Area, 6 AD3d 1047, 1052 [2004], affd 4 NY3d 293 [2005]), in theinstant case, there has been no determination with respect to whether Golub's conduct waswrongful or actionable. Goldstein, J.P., Skelos, Dillon and Covello, JJ., concur.