| Hickey v Arnot-Ogden Med. Ctr. |
| 2010 NY Slip Op 09314 [79 AD3d 1400] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Gabrielle Hickey, an Infant, by Amanda Hickey, Her Mother andGuardian, et al., Respondents, v Arnot-Ogden Medical Center, Appellant, et al.,Defendant. |
—[*1] Oshman & Mirisola, L.L.P., New York City (Thomas O'Malley of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered September 10, 2009 inChemung County, which denied a motion by defendant Arnot-Ogden Medical Center for summaryjudgment dismissing the complaint against it.
Plaintiff Amanda Hickey (hereinafter plaintiff) went to defendant Arnot-Ogden Medical Center(hereinafter defendant) for obstetrical and gynecological care in relation to the birth of her daughter,plaintiff Gabrielle Hickey (hereinafter the infant). Plaintiffs commenced this action to recover damagesfor defendant's negligence and medical malpractice during the delivery of the infant. Defendant movedfor summary judgment dismissing the complaint. On defendant's appeal from Supreme Court's denial ofsuch motion, we now affirm.
As the movant, defendant bears the initial burden of demonstrating its entitlement to judgment as amatter of law; only upon such showing does the burden shift to plaintiffs to demonstrate the existence ofa triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, [*2]324, 326-327 [1986]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067-1068 [1979]). Here, defendant submitted the affidavit of Henry Lerner, a board-certified doctorin obstetrics and gynecology. He opined that defendant's care and treatment of plaintiffs was withinacceptable standards of care and that no act or omission by defendant or its agents or employeescaused the infant's alleged injuries.
In opposition, plaintiffs supplied the affidavit of Edward Vogel, who is also a board-certified doctorin obstetrics and gynecology. Vogel opined that defendant Jay K. Mehta, plaintiff's attending physician,deviated from good and accepted practice in relation to the infant's delivery and that such deviation wasa proximate cause of her injuries. Viewing the evidence in the light most favorable to plaintiffs (seeHorth v Mansur, 243 AD2d 1041, 1042 [1997]), we find that Supreme Court properlydetermined that plaintiffs raised triable issues of fact as to whether Mehta breached the applicablestandard of care and whether such breach was the proximate cause of the infant's injuries.
We are unpersuaded by defendant's contention that, even if plaintiffs have raised triable issues offact regarding Mehta's care, it is nevertheless entitled to judgment dismissing the complaint against itbecause plaintiffs failed to establish that Mehta was its agent or employee. Plaintiffs clearly alleged intheir complaint, as amplified by their bill of particulars, that Mehta was an agent, servant and/oremployee of defendant. Thus, when moving for summary judgment, the burden was on defendant tonegate such allegations. Since it failed to do so, the burden never shifted to plaintiffs to raise a triableissue of fact in this regard and the sufficiency of their opposition papers is of no relevance (seeAlvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
Defendant's remaining contentions have been considered and are either academic or without merit.
Mercure, J.P., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.