| Saretto v Panos |
| 2014 NY Slip Op 05969 [120 AD3d 786] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Sally Saretto, Respondent, v Spyros Panos etal., Defendants, and Vassar Brothers Hospital et al.,Appellants. |
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for appellant Vassar Brothers Hospital.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y.(Christopher P. Keenan and Timothy M. Smith of counsel), for appellant Mid HudsonMedical Group, P.C.
Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantVassar Brothers Hospital appeals, as limited by its brief, from so much of an order of theSupreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied itsmotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst it as time-barred, and the defendant Mid Hudson Medical Group, P.C., separatelyappeals, as limited by its brief, from so much of the same order as denied that branch ofits motion which was pursuant to CPLR 3211 (a) (7) to dismiss the claims in thecomplaint to recover damages for negligent hiring and supervision insofar as assertedagainst it.
Ordered that the order is reversed insofar as appealed from by the defendant VassarBrothers Hospital, on the law, and the motion of that defendant pursuant to CPLR 3211(a) (5) to dismiss the complaint insofar as asserted against it as time-barred is granted;and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant MidHudson Medical Group, P.C.; and it is further,
Ordered that one bill of costs is awarded to the defendant Vassar Brothers Hospitalpayable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by thedefendant Mid Hudson Medical Group, P.C.
According to the plaintiff, in or about June 2008, she sought treatment for her leftknee from the defendant Spyros Panos, a physician employed by the defendant MidHudson Medical Group, P.C. (hereinafter Mid Hudson). On August 7, 2008, Panosperformed surgery on the plaintiff's knee at Vassar Brothers Hospital (hereinafterVassar). On April 10, 2012, the plaintiff commenced this action against Vassar and MidHudson, among others, inter alia, to recover damages [*2]for medical malpractice.
The Supreme Court should have granted Vassar's motion pursuant to CPLR 3211 (a)(5) to dismiss the complaint insofar as asserted against it as time-barred. Contrary to theplaintiff's contention, the motion was not properly denied on the ground that discoverymight have revealed evidence that would estop Vassar from raising a statute oflimitations defense. In opposition to Vassar's motion, the plaintiff argued that, withfurther discovery, she hoped to be able to establish that Vassar possessed knowledge ofPanos's medical malpractice, and that this knowledge, coupled with Vassar's "allowing"Panos "to continue" his malpractice to the detriment of other patients, was a fraudperpetrated by Vassar on the public that estopped it from asserting a statute of limitationsdefense. Even if the plaintiff were able to establish these facts, however, they would notgive rise to an estoppel (seePlain v Vassar Bros. Hosp., 115 AD3d 922, 923 [2014]; Nelson v Hudson Val. Ctr. at St.Francis, LLC, 115 AD3d 917, 918 [2014]; Butcher v Panos, 115 AD3d 900, 901 [2014]).
However, the Supreme Court properly denied that branch of Mid Hudson's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the claims to recover damages fornegligent hiring or supervision insofar as asserted against it. " 'Generally, wherean employee is acting within the scope of his or her employment, the employer is liablefor the employee's negligence under a theory of respondeat superior and no claim mayproceed against the employer for negligent hiring, retention, supervision ortraining' " (Quiroz vZottola, 96 AD3d 1035, 1037 [2012], quoting Talavera v Arbit, 18 AD3d738, 738 [2005]; see Neigerv City of New York, 72 AD3d 663, 664 [2010]). Since Mid Hudson did notconcede that Panos acted completely within the scope of his employment whencommitting all of the acts alleged in the complaint, the Supreme Court did not err inrefusing to direct the dismissal of the claims against Mid Hudson to recover damages fornegligent hiring and supervision (see Pickering v State of New York, 30 AD3d 393, 394[2006]; cf. Cheng Feng Fong vNew York City Tr. Auth., 83 AD3d 642, 643 [2011]). Dickerson, J.P.,Leventhal, Austin and Hinds-Radix, JJ., concur.