Robinson v. Jewish Hosp. and Medical Center of Brooklyn
| Decision Date | 27 July 1987 |
| Citation | 519 N.Y.S.2d 459,136 Misc.2d 880 |
| Parties | Josephine ROBINSON and Lonniell Robinson, Plaintiffs, v. JEWISH HOSPITAL AND MEDICAL CENTER OF BROOKLYN, et al., Defendants. |
| Court | New York Supreme Court |
Bower & Gardner (Lawrence M. Schwartz and Steven J. Ahmuty, Jr., of counsel), New York City, for Jewish Hosp. and Medical Center and Reddy.
Heidell, Pittoni, Murphy & Bach, P.C. (Luke M. Pittoni and Heidi A. Fuhrman, of counsel), New York City, for Aziz.
By summons and verified complaint dated July 18, 1977, Josephine and Lonniell Robinson commenced an action against the Jewish Hospital and Medical Center of Brooklyn and Dr. Reddy seeking damages for injuries sustained during the labor and delivery of the Robinsons' child. Both defendants joined issue by the end of 1977 and after various discovery proceedings, the Robinsons placed the action on the trial calendar on October 29, 1982.
Thereafter, on November 22, 1983, Jewish Hospital and Dr. Reddy commenced a third-party action against Anesthesiology Service. The third-party complaint alleges that Dr. Bravo was an employee of Anesthesiology Service; that it is Dr. Bravo that administered anesthesia to Josephine Robinson on the subject day and that if Robinson was, in fact, injured such injuries were caused in part or in their entirety by Anesthesiology Service. The third-party complaint goes on to claim that if Robinson is entitled to recovery from Jewish Hospital and Dr. Reddy, then they should have judgment over and against Anesthesiology Service based on its want of care which contributed to the occurrence complained of by Robinson. In a second cause of action the third-party complaint alleges that if Robinson is entitled to recover from the Jewish Hospital and Dr. Reddy, then Anesthesiology Service is liable to "indemnify" them. By amended summons and verified complaint dated January 19, 1984, Jewish Hospital and Dr. Reddy added Drs. Chiron and Bergman as additional third-party defendants with Anesthesiology Service.
In a further attempt to spread any resulting damage award, Jewish Hospital and Dr. Reddy served a second third-party summons and complaint dated June 29, 1984. The apparent purpose of this second third-party pleading was to bring Dr. Adel William Aziz into the action. The allegations made against him are that Dr. Aziz was a partner, independent contractor and/or employee of the Obstetrical Anesthesia Service; that he was chief of the Obstetrical Anesthesia Service; that Dr. Bravo provided anesthesiology services to certain patients on the Obstetrical Anesthesia Service at Jewish Hospital under the direction, control and supervision of Dr. Aziz; that Dr. Bravo is an employee of Anesthesiology Service; that if Robinson was injured as she claims, such injuries were caused, in whole, or in part by the negligence of Dr. Aziz and that if Robinson is entitled to recover against Jewish Hospital and Dr. Reddy, they should have judgment over and against Dr. Aziz based on his want of care which contributed to Robinson's injuries. As a second cause of action, the second third-party complaint claims that if Robinson recovers from Jewish Hospital and Dr. Reddy, then Dr. Aziz is liable to indemnify them.
Dr. Aziz joined issue and then brought on an order to show cause dated September 6, 1984 inter alia seeking summary judgment. A month later, however, on October 10, 1984, plaintiffs' action was settled and Dr. Aziz agreed to withdraw his order to show cause without prejudice to its renewal. The stipulation of settlement made in open court before Justice Adler provided that while plaintiffs' action is settled the third-party action could continue.
Certain monies were paid to plaintiffs, who are no longer involved in this action and other amounts are being held in "escrow" pending the outcome of this litigation.
Prior to the settlement, Dr. Aziz had also sought certain disclosure by way of motion which had resulted in an order dated June 5, 1985 (Kramer, J.), directing certain documents to be furnished by Jewish Hospital or if it could not so comply, then to instead furnish an affidavit. There was an additional proviso that Dr. Aziz could renew his motion for summary judgment before Judge Kramer if there was no compliance with the order.
The matter is now before the court on the motion of Dr. Aziz seeking an order pursuant to CPLR 3211(a)(7) dismissing the third-party complaint against him, granting him summary judgment pursuant to CPLR 3212 against Jewish Hospital and Dr. Reddy and dismissing the second third-party complaint for non-compliance with his discovery demand and the June 5, 1985 order of Judge Kramer.
Dr. Aziz posits that Jewish Hospital and Reddy are claiming that it is Aziz and not the hospital that is vicariously liable for Dr. Bravo's acts under the doctrine of respondeat superior and, therefore, if the hospital is held accountable for Bravo's acts, it is entitled to full indemnity from Dr. Aziz.
The factual aspects of this action and certain legal consequences are now governed by the stipulation of settlement made on October 10, 1984. Its applicable portions state that any rights that the parties have under General Obligations Law section 15-108 are waived; that had plaintiff's action been tried, there would have been findings that Dr. Bravo was negligent and that such negligence was the proximate cause of plaintiff's injuries. It was further stipulated that the liability of the hospital, had there been any, would only have been vicarious (p. 13-14 Stipulation of Settlement) and that the third-party action brought by the hospital is also on the issue of whether Dr. Aziz is vicariously liable.
Simply put, the parties are agreed that Dr. Bravo was negligent but disagree as to who employed her and the relative legal effect of such employment.
As I perceive Dr. Aziz's position on this motion, he maintains that the hospital cannot prevail no matter what happens at a trial. Since the hospital, if liable, is agreed to be only vicariously liable to plaintiffs (and it should be noted that plaintiffs sued the hospital and not Dr. Aziz) the hospital cannot now turn around and seek to hold Dr. Aziz in because the law does not recognize double or sequential vicarious liability. On the other hand, if the hospital is found not vicariously liable, then there would be no basis for recovery from Dr. Aziz since the hospital would have prevailed in the main action. Dr. Aziz maintains further that since plaintiffs did not sue him, then even if he is found to be Dr. Bravo's employer, neither the plaintiffs nor the third-party plaintiffs, hospital and Dr. Reddy, would have a right of recovery against him.
Dr. Aziz also argues that the hospital's and Dr. Reddy's claim can be premised only on indemnity based upon his alleged vicarious liability for Dr. Bravo. This is so because a claim for contribution would not lie against Dr. Aziz for Dr. Bravo's activities as it must be conceded that Dr. Aziz who was not present at the time of plaintiff's treatment was at most a passive tortfeasor. Finally, Dr. Aziz contends that under the facts of this case, Dr. Bravo must be deemed not his employee, but rather an employee of the hospital.
In opposition to the motion, the hospital and Dr. Reddy contend that Dr. Bravo was an employee of Dr. Aziz, and that even supposing Dr. Bravo was found to be an employee of the hospital vis-a-vis the plaintiffs, that does not preclude a finding that he was also an employee of Dr. Aziz. The result would be that both would be responsible for Dr. Bravo's acts. Thus, the hospital and Dr. Reddy are pursuing claims against Dr. Aziz based upon contribution and indemnity.
In my view, Dr. Aziz's motion should be denied because there are issues of fact which preclude a grant of summary judgment in favor of either party.
While vicarious liability entails passive rather than active...
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Robinson v. Jewish Hosp. and Medical Center of Brooklyn
...judgment should have been denied. We have reviewed the parties' remaining contentions and find them to be without merit. [See, 136 Misc.2d 880, 519 N.Y.S.2d 459.] ...