| Schacherbauer v University Assoc. in Obstetrics & Gynecology,P.C. |
| 2008 NY Slip Op 09379 [56 AD3d 751] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Josephine Schacherbauer et al., Respondents, v UniversityAssociates in Obstetrics & Gynecology, P.C., et al., Appellants, et al.,Defendants. |
—[*1] Bauman, Kunkis & Ocasio-Douglas, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y., ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendants UniversityAssociates in Obstetrics & Gynecology, P.C., Michael Lydic, and Richard Bronson, appeal froman order of the Supreme Court, Suffolk County (Cohalan, J.), dated September 20, 2007, whichdenied their motion for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed, with costs.
While it may be true that the phlebotomist who performed the lab work upon the plaintiffJosephine Schacherbauer (hereinafter the injured plaintiff) was not an actual employee of theappellants, that circumstance alone is not dispositive of the issue of liability of the defendantUniversity Associates in Obstetrics & Gynecology, P.C. (hereinafter University Associates)(see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). Even in the absence of anemployment relationship between the phlebotomist and University Associates, the latter may stillbe vicariously liable for the phlebotomist's alleged negligence if the phlebotomist acted as itsagent or if University Associates exercised control over her (id. at 80; see Mduba vBenedictine Hosp., 52 AD2d 450, 452 [1976]). The appellants adduced no evidence tonegate the possibility [*2]that the phlebotomist who performedthe procedure upon the injured plaintiff was in fact their agent or that she acted under theircontrol (see Mendez v White, 40 AD3d 1057, 1058 [2007]).
Moreover, the appellants' proof left unresolved triable issues of fact as to whether theplaintiff reasonably believed that the phlebotomist had been provided by University Associatesand was "ostensibly acting as its agent in providing care to the plaintiff" (id. at 1058;see Hill v St. Clare's Hosp., 67 NY2d at 80; cf. Soltis v State of New York, 172AD2d 919 [1991]). Therefore, the appellants failed to establish their prima facie entitlement tojudgment as a matter of law, which requires the denial of their motion, regardless of thesufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Santucci, J.P., Covello, Leventhal and Belen, JJ., concur. [See 2007 NY Slip Op32981(U).]