| Johnson v Peloro |
| 2009 NY Slip Op 04199 [62 AD3d 955] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Michele Johnson, Appellant-Respondent, v Bartolo Peloroet al., Respondents, and University Physicians Group, P.C., Respondent-Appellant, et al.,Defendants. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., ofcounsel), for respondent-appellant.
In an action, inter alia, to recover damages for medical malpractice and negligence, etc., theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, KingsCounty (Rosenberg, J.), dated April 30, 2007, as granted that branch of the motion of thedefendants Bartolo Peloro, Joseph Buono, Lawrence Langan, and University Physicians Group,P.C., which was for summary judgment dismissing the complaint insofar as asserted against thedefendant Bartolo Peloro, and, in effect, denied that branch of her cross motion which was topreclude the defendants Richard Lucente and University Physicians Group, P.C., from limitingtheir liability pursuant to CPLR article 16 based on the acts or omissions of the defendant JosephBuono, and the defendant University Physicians Group, P.C. cross-appeals, as limited by itsbrief, from stated portions of the same order, which, among other things, denied that branch ofthe motion of the defendants Bartolo Peloro, Joseph Buono, Lawrence Langan, and UniversityPhysicians Group, P.C., which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's cross motion which was to preclude the defendants Richard Lucente andUniversity Physicians Group, P.C., from limiting their liability pursuant to CPLR article 16based on the acts or omissions of the defendant Joseph Buono, and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed insofaras appealed and cross-appealed from, without costs or disbursements.
The Supreme Court properly granted that branch of the motion of the defendant UniversityPhysicians Group, P.C. (hereinafter University Physicians), Bartolo Peloro, Joseph Buono, andLawrence Langan (hereinafter collectively the University Physicians defendants) which was forsummary judgment dismissing the complaint insofar as asserted against Peloro. Although theSupreme Court incorrectly concluded that the University Physicians defendants established thatPeloro was not in a physician-patient relationship with the decedent (cf. United CalendarMfg. Corp. v Huang, 94 AD2d 176, 179 [1983]), the University Physicians defendantsnevertheless demonstrated their entitlement to judgment as a matter of law by establishing that,in recommending that the decedent consult a gastroenterologist, Peloro rendered appropriate careto the decedent (see Williams vSahay, 12 AD3d 366, 368 [2004]). The plaintiff's medical experts' affirmations failed toraise a triable issue of fact as to whether Peloro did not render appropriate [*2]care to the decedent (see Diaz v New York DowntownHosp., 99 NY2d 542, 544 [2002]).
In addition, the Supreme Court properly denied that branch of the motion of the UniversityPhysicians defendants which was for summary judgment dismissing the complaint insofar asasserted against University Physicians. Contrary to the University Physicians defendants'contention, the determination that Peloro is entitled to summary judgment does not necessitatethe same conclusion as to University Physicians, because the plaintiff's allegations concerningUniversity Physicians' liability are not predicated upon Peloro's conduct, but rather, arepredicated upon the allegedly improper failure of the staff of University Physicians to conveyPeloro's referral to the decedent (see Collins v New York Hosp., 49 NY2d 965, 967[1980]). Furthermore, the University Physicians defendants failed to demonstrate that the referralwas actually conveyed to the decedent (cf. Allstate Ins. Co. v Persampire, 45 AD3d 706, 706-707 [2007];Goldberger v Village of KiryasJoel, 31 AD3d 496, 497 [2006]).
The plaintiff cross-moved to preclude any defendants remaining in the action afteradjudication of the summary judgment motions from asserting the benefits of CPLR article 16with respect to the acts or omissions of the defendants that were awarded summary judgment.The Supreme Court granted the plaintiff's cross motion, which was unopposed, to the extent ofprecluding University Physicians and the defendant Richard Lucente from asserting the benefitsof CPLR article 16 with respect to the acts or omissions of Peloro and Langan, who wereawarded summary judgment. However, under the circumstances of this case, the Supreme Courtshould also have precluded University Physicians and Lucente from asserting the benefits ofCPLR article 16 with respect to the acts or omissions of Buono, who was also awarded summaryjudgment.
The parties' remaining contentions are without merit. Spolzino, J.P., Florio, Covello andEng, JJ., concur.