| Parrilla v Buccellato |
| 2013 NY Slip Op 00069 [102 AD3d 664] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Miriam Parrilla, Appellant, v John Buccellato,Defendant, and Brooklyn Hospital Center, Respondent. |
—[*1] Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley and Rita F. Aronovof counsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court,Kings County (Bunyan, J.), dated June 29, 2011, as granted that branch of the motion ofthe defendant Brooklyn Hospital Center which was for summary judgment dismissing somuch of the complaint as alleged that it was vicariously liable for the treatment renderedto the plaintiff's decedent by a nonparty physician.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendant Brooklyn Hospital Center which was forsummary judgment dismissing so much of the complaint as alleged that it was vicariouslyliable for the treatment rendered to the plaintiff's decedent by a nonparty physician isdenied.
Following her father's death, the plaintiff, as administrator of his estate, commenceda medical malpractice and wrongful death action against, among others, BrooklynHospital Center (hereinafter BHC). However, the plaintiff failed to name one of theattending physicians in charge of her father's care as a defendant before the statute oflimitations had run. BHC moved, inter alia, for summary judgment dismissing so muchof the complaint as alleged that it was vicariously liable for that nonparty physician'sactions, arguing that the plaintiff did not have a viable cause of action against him. TheSupreme Court agreed, and granted that branch of BHC's motion.
Contrary to the Supreme Court's conclusion, where, as here, a plaintiff timelycommences a medical malpractice action against a defendant hospital on respondeatsuperior principles, the failure to name the individual doctors upon whom the claim ispredicated as defendants within the applicable statute of limitations period "does notcompel dismissal of the plaintiff's vicarious liability claim against the hospital" (Shapiro v Good SamaritanRegional Hosp. Med. Ctr., 55 AD3d 821, 823 [2008]; cf. Magriz v St. BarnabasHosp., 43 AD3d 331 [2007]; DiFilippi v Huntington Hosp., 203 AD2d321 [1994]; Walsh v Faxton-Children's Hosp., 192 AD2d 1106 [1993]). Basedon the foregoing, the Supreme Court erred in granting that branch of BHC's motionwhich was for [*2]summary judgment dismissing somuch of the complaint as alleged that it was vicariously liable for the treatment renderedto the plaintiff's father by the nonparty physician. Skelos, J.P., Hall, Austin andHinds-Radix, JJ., concur.