| Goler v Sonsky |
| 2014 NY Slip Op 01433 [115 AD3d 644] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Yevgeniy Goler et al., Appellants, v Alan Sonskyet al., Defendants, and Mario DiBlasio et al., Respondents. |
—[*1] Schuchman Schwarz & Zoldan-Leite, LLP, New York, N.Y. (Joseph K. Schwarz ofcounsel), for respondent Mario DiBlasio. Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zuckerof counsel), for respondent New York Community Hospital.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, KingsCounty (Bunyan, J.), dated April 2, 2012, as granted the separate motions of thedefendants Mario DiBlasio and New York Community Hospital for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In this medical malpractice action, the plaintiffs contend that the Supreme Courterred in granting the motion of the defendant Mario DiBlasio, a radiologist, for summaryjudgment dismissing the complaint insofar as asserted against him. Their contention iswithout merit. DiBlasio's submissions in support of his motion, which included theaffidavit of an expert radiologist, established that he did not depart from acceptedmedical practice in his treatment of the plaintiff Yevgeniy Goler (see Rivers v Birnbaum, 102AD3d 26, 44-46 [2012]; Ahmed v New York City Health & Hosps. Corp., 84 AD3d709, 711 [2011]). The affirmation of the plaintiffs' expert radiologist and theaffidavit of the plaintiffs' expert surgeon submitted in opposition to the motion wereinsufficient to raise a triable issue of fact.
In addition, the Supreme Court properly granted the motion of New YorkCommunity Hospital (hereinafter NYCH) for summary judgment dismissing thecomplaint insofar as asserted against it. Because DiBlasio did not commit malpractice, nobasis exists for proceeding against NYCH under a vicarious liability theory (see Simmons v Brooklyn Hosp.Ctr., 74 AD3d 1174, 1178-1179 [2010]).
In light of our determination, we need not address the parties' remaining contentions.Mastro, J.P., Dickerson, Lott and Hinds-Radix, JJ., concur.