| Belak-Redl v Bollengier |
| 2010 NY Slip Op 05496 [74 AD3d 1110] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Helen C. Belak-Redl et al., Appellants, v William E.Bollengier et al., Respondents. |
—[*1] Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains, N.Y. (Richard J. Nealonof counsel), for respondent William E. Bollengier. Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Ellen Fischer Bopp of counsel), forrespondents Matthew S. Klein and North American Partners in Anesthesia, LLP. Phelan, Phelan & Danek, LLP, Albany, N.Y. (Timothy S. Brennan of counsel), forrespondent Vassar Brothers Medical Center.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, DutchessCounty (Brands, J.), dated May 15, 2009, as granted the separate motions of the defendantsWilliam E. Bollengier and Vassar Brothers Medical Center for summary judgment dismissingthe complaint insofar as asserted against each of them and granted that branch of the motion ofthe defendants Matthew S. Klein and North American Partners in Anesthesia, LLP, which wasfor summary judgment dismissing the complaint insofar as asserted against the defendantMatthew S. Klein.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
The plaintiffs commenced this action, inter alia, to recover damages for medical malpractice.They alleged, among other things, that the plaintiff Helen Belak-Redl sustained a brachial plexusinjury of her right arm during lung surgery performed by the defendant surgeon, William E.Bollengier, with the assistance of the defendant anesthesiologist, Matthew S. Klein, at thedefendant Vassar Brothers Medical Center (hereinafter VBMC). Allegedly, the injury wascaused by the improper positioning or repositioning of Belak-Redl during the procedure.
The Supreme Court properly awarded summary judgment dismissing the complaint insofaras asserted against Dr. Bollengier and Dr. Klein. "On a motion for summary judgment in amedical malpractice action, a defendant doctor has the burden of establishing the absence of anydeparture from good and accepted medical practice, or that the plaintiff was not injured thereby"(Shahid v New York City Health &Hosps. Corp., 47 AD3d 800, 801 [2008]; see Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d 431,433 [2009]; Germaine v Yu, 49AD3d 685, 686 [2008]). Dr. Bollengier and Dr. [*2]Kleineach made a prima facie showing of entitlement to judgment as a matter of law by profferingtheir own affidavits, in which they opined, to a reasonable degree of medical certainty, that thecare and treatment each of them provided to Belak-Redl did not depart from good and acceptedmedical practice (see Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d at 433; Videnovic v Goodman, 54 AD3d937, 939-940 [2008]). In opposition thereto, the plaintiffs failed to raise a triable issue offact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The expertaffirmation proffered by the plaintiffs was speculative and, thus, did not raise a triable issue offact (see Dessources v Good SamaritanHosp., 65 AD3d 1008, 1010 [2009]; Boutin v Bay Shore Family Health Ctr., 59 AD3d 368, 370 [2009];Kane v Ausubel, 44 AD3d 717[2007]).
Further, the Supreme Court properly granted VBMC's motion for summary judgmentdismissing the complaint insofar as asserted against it. VBMC made a prima facie showing thatit was not vicariously liable for any alleged acts or omissions of Dr. Bollengier or Dr. Klein bydemonstrating that those defendants were not VBMC employees (see Hill v St. Clare'sHosp., 67 NY2d 72, 79 [1986]; Fiorentino v Wenger, 19 NY2d 407, 414 [1967]),and that VBMC had not made any representations or engaged in any conduct which would allowfor the imposition of vicarious liability under a theory of ostensible or apparent agency (see Thurman v United Health Servs.Hosps., Inc., 39 AD3d 934, 935-936 [2007]; King v Mitchell, 31 AD3d 958, 959 [2006]). In opposition thereto,the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
The plaintiffs' remaining contentions are without merit. Santucci, J.P., Angiolillo, Dickersonand Austin, JJ., concur.