Czeladzinski v. County of Erie — 291 A.D.2d 883

Majority

p. 883

Donald Czeladzinski et al, Appellants, v County of Erie, Respondent.

[737 NYS2d 567]

—Appeal from that part of an order of Supreme Court, Erie County (Mintz, J.), entered December 1, 2000, that upon reargument adhered to the prior decision granting defendant’s motion for summary judgment.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, defendant’s motion is denied and the complaint is reinstated.

Memorandum: Plaintiffs appeal from that part of an order in this medical malpractice action that upon reargument adhered to the prior decision granting defendant’s motion for summary judgment dismissing the complaint. We conclude that Supreme Court erred in granting defendant’s motion. Defendant failed to present evidence in admissible form demonstrating that

p. 884

there are no material issues of fact and thus failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320 , 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853). In any event, we further conclude that plaintiffs raised a triable issue of fact whether plaintiff Donald Czeladzinski’s treatment was being rendered under the apparent authority of the Erie County Medical Center and thus whether defendant may be held vicariously liable for the alleged malpractice (see, Hill v St. Clare’s Hosp., 67 NY2d 72 , 79-81; Duncan v Mount St. Mary’s Hosp. of Niagara Falls, 176 Misc 2d 201 , 202-203). Present — Wisner, J.P., Hurlbutt, Kehoe, Burns and Lawton, JJ.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 884
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 884
Hill v. St. Clare's Hospital 67 NY2d 72 N.Y. 1986-02-19 at 79-81 p. 884
Duncan v. Mount St. Mary's Hospital of Niagara Falls 176 Misc 2d 201 N.Y. Sup. Ct. 1998-03-19 at 202-203 p. 884