| Shapiro v Good Samaritan Regional Hosp. Med. Ctr. |
| 2008 NY Slip Op 08116 [55 AD3d 821] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Michael Shapiro, Appellant, v Good Samaritan RegionalHospital Medical Center, Respondent, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Heidell, Pittoni, Murphy & Bach LLP, White Plains, N.Y. (Daniel S. Ratner of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), datedDecember 21, 2007, as granted that branch of the motion of the defendant Good Samaritan RegionalHospital Medical Center which was for leave to make a late motion for summary judgment and,thereupon, granted that branch of the motion which was for summary judgment dismissing so much ofthe first cause of action insofar as asserted against it as is predicated upon negligent interpretation ofpathology specimens.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Good Samaritan Regional Hospital Medical Center which wasfor summary judgment dismissing so much of the first cause of action insofar as asserted against it as ispredicated upon negligent interpretation of pathology specimens and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, withcosts.
On September 23, 1998 the plaintiff underwent surgery at Good Samaritan Regional HospitalMedical Center (hereinafter the hospital) to remove a cancerous lesion in his mouth. A second surgical[*2]procedure to remove additional cancerous tissue was performed atthe hospital on October 7, 1998. The plaintiff's cancer subsequently spread, and in July 1999 he wasrequired to undergo an extensive third surgery at another hospital to remove cancerous tissue, andreconstruct his right cheek.
On March 20, 2000 the plaintiff commenced this action against the private attending physician whohad performed the September and October 1998 surgeries, and against the hospital. The plaintiffalleged that the hospital's negligence included the failure to properly interpret tissue specimens from hissurgeries, which were misdiagnosed as clear when they actually contained cancer. During the course ofdiscovery, the plaintiff learned that the pathologist who had interpreted his surgical specimens wasactually employed by a separate professional corporation which provided pathology services to thehospital (hereinafter the pathologists). In July 2005 the hospital commenced a third-party action againstthe pathologists, and the plaintiff subsequently moved for leave to serve and file a supplementalsummons and an amended complaint adding the pathologists as direct defendants. The Supreme Courtgranted the plaintiff's motion, concluding that despite the expiration of the statute of limitations, theproposed claim against the pathologists was not time-barred under the relation-back doctrine becausethe hospital and pathologists were united in interest. However, by decision and order dated July 10,2007, this Court reversed, concluding that even if the plaintiff had satisfied the first two elements of therelation-back doctrine test, he had failed to satisfy the third element, which required him to establish thatthe pathologists knew or should have known that, but for a mistake as to the identity of the properparties, this action would have been brought against them as well (see Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d443 [2007]). Less than two months later, the hospital moved, inter alia, for leave to make a latemotion for summary judgment and, thereupon, for summary judgment dismissing so much of the firstcause of action insofar as asserted against it as is predicated upon negligent interpretation of thepathology specimens. The hospital primarily argued that it could not be held vicariously liable for theactions of the pathologists because the plaintiff's claims against the pathologists were time-barred. Insupport of its position, the hospital argued that the recently-decided case of Magriz v St. Barnabas Hosp. (43 AD3d331 [2007]), was controlling authority, and mandated dismissal. The Supreme Court concludedthat Magriz was controlling, and thus, the plaintiff was precluded from seeking to hold thehospital vicariously for the pathologists' actions on an apparent agency theory. We disagree.
Contrary to the Supreme Court's conclusion, the plaintiff's failure to commence a timely directaction against the pathologists within 2½ years after they interpreted the tissue specimens from hisSeptember and October 1998 surgeries does not compel dismissal of the plaintiff's vicarious liabilityclaim against the hospital. The plaintiff's action against the hospital was timely commenced within theapplicable 2½-year limitations period, and the pathologists are not necessary parties to an actionseeking to hold the hospital vicariously liable for their alleged negligence on respondeat superiorprinciples (see Trivedi v Golub, 46AD3d 542, 543 [2007]; Rock v County of Suffolk, 212 AD2d 587 [1995]; Cherneyv Board of Educ. of City School Dist. of City of White Plains, 31 AD2d 764 [1969]; see also Thomsen v Suffolk County PoliceDept., 50 AD3d 1015 [2008]). The plaintiff's timely commencement of this action against thehospital distinguishes this case from Magriz vSt. Barnabas Hosp. (43 AD3d 331 [2007]), and similar authority holding that a vicariousliability claim is extinguished where there is no primary liability upon which the claim of vicarious liabilitymight rest (see e.g. Colon v City of New York, 287 AD2d 591 [2001]; Culhane vSchorr, 259 AD2d 511 [1999]; Cox v Kingsboro Med. Group, 214 AD2d 150 [1995],affd 88 NY2d 904 [1996]; DiFilippi v Huntington Hosp., 203 AD2d 321 [1994];Walsh v Faxton-Children's Hosp., 192 AD2d 1106 [1993]; see also Karaduman vNewsday, Inc., 51 NY2d 531 [1980]).[*3]
As an alternative basis for affirmance, the hospital contendsthat it cannot be held liable for the acts or omissions of the pathologists on an apparent agency theory.However, the hospital did not move for summary judgment on the ground that the pathologists couldnot be considered its apparent agents, and submitted no evidence on this issue. Accordingly, this issueis not properly before us (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d539 [1983]; Dooley v Peerless Importers,Inc., 42 AD3d 199, 206 [2007]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]).
The plaintiff's remaining contentions either are without merit or need not be reached in light of ourdetermination. Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur.