Giambona v. Hines

• Citation: 961 N.Y.S.2d 519,2013 N.Y. Slip Op. 01803,104 A.D.3d 807
• Parties: Palma GIAMBONA, etc., appellant-respondent, v. George L. HINES, etc., et al., respondents, Winthrop–University Hospital Association, respondent-appellant, et al., defendants.
• Decision Date: 20 March 2013
• Court: New York Supreme Court Appellate Division

104 A.D.3d 807
961 N.Y.S.2d 519
2013 N.Y. Slip Op. 01803

Palma GIAMBONA, etc., appellant-respondent,
v.
George L. HINES, etc., et al., respondents,
Winthrop–University Hospital Association, respondent-appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

March 20, 2013.

[961 N.Y.S.2d 520]

Duffy & Duffy, Uniondale, N.Y. (Brian C. Lockhart and James N. LiCalzi of counsel), for appellant-respondent.

[961 N.Y.S.2d 521]

Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondent-appellant.

Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Jeffrey A. Learn and Scott Luis McCann of counsel), for respondents.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

[104 A.D.3d 807]In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by her brief, from so much of a resettled order of the Supreme Court, Nassau County (Parga, J.), entered April 11, 2011, as, pursuant to an order of the same court entered August 24, 2010, and resettled nunc pro tunc as of June 22, 2010, (a) granted that branch of the motion of the defendants George L. Hines and Winthrop Cardiovascular & Thoracic Surgery, P.C., which was for summary[104 A.D.3d 808]judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them, and (b) granted that branch of the cross motion of the defendant Winthrop–University Hospital Association which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's decedent by nonparty physician Rakesh Shah; and the defendant Winthrop–University Hospital Association cross-appeals from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's decedent by the defendant Nicolas Raio.

ORDERED that the resettled order entered April 11, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the resettled order entered April 11, 2011, is reversed insofar as cross-appealed from, on the law, and that branch of the cross motion of the defendant Winthrop–University Hospital Association which was for summary judgment dismissing so much of the complaint as alleged that it was vicariously liable for the treatment rendered to the plaintiff's decedent by the defendant Nicolas Raio is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants George L. Hines, Winthrop Cardiovascular Thoracic Surgery, P.C., and Winthrop–University Hospital Association appearing separately and filing separate briefs, payable by the plaintiff.

The plaintiff's decedent allegedly sustained injuries and died as the result of a thoracoabdominal aortic aneurysm that was not timely and properly diagnosed or treated. The plaintiff commenced this action, inter alia, to recover damages for medical malpractice and wrongful death, against the defendants George L. Hines, Winthrop Cardiovascular & Thoracic Surgery, P.C. (hereinafter Winthrop Cardiovascular), Winthrop–University Hospital Association (hereinafter Winthrop–University Hospital), Bethpage Primary Medical Care, P.C. (hereinafter Bethpage Primary Medical), and physicians Anthony T. Arcati, Barrett Donald Sklar, Jack W. Geffken, John Salvatore Boccio, and Nicolas Raio.

Bethpage Primary Medical, Arcati, Sklar, Geffken, and Boccio moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and Hines and Winthrop Cardiovascular separately moved for summary judgment dismissing the complaint insofar as asserted against them. Winthrop–University

[961 N.Y.S.2d 522]

Hospital cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In the [104 A.D.3d 809]resettled order appealed from, the Supreme Court awarded summary judgment to Bethpage Primary Medical, Arcati, Sklar, Geffken, and Boccio, dismissing the complaint insofar as asserted against them. The court also awarded summary judgment to Hines and Winthrop Cardiovascular, dismissing the complaint insofar as asserted against them. Consequently, the court awarded summary judgment to Winthrop–University Hospital dismissing the vicarious liability claims asserted against it pertaining to Bethpage Primary Medical, Winthrop Cardiovascular, Arcati, Sklar, Geffken, Boccio, and Hines. However, the court denied that branch of Winthrop–University...