Charles v. Jamaica Hospital

In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Dollard, J.), dated November 22, 2004, as, upon an order of the same court dated May 6, 2004, inter alia, granting that branch of the motion of the defendant Moise Maurice Abitol which was for summary judgment dismissing the complaint insofar as asserted against him, is in favor of that defendant and against them. Ordered that the judgment is affirmed insofar as appealed from, with costs. The plaintiffs’ contention that the summary judgment motion of the defendant Moise Maurice Abitol should not have been considered on the ground that it was untimely pursuant to CFLR 3212 (a) is improperly raised for the first time on appeal (see LaBella v Allstate Ins. Co., 261 AD2d 367, 368 [1999]). In any event, Abitol established good cause for the delay. Abitol established his entitlement to judgment as a matter of law on the ground that there was no doctor-patient relationship between him and the plaintiffs decedent and no basis to impose vicarious liability on him (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Sawh v Schoen, 215 AD2d 291, 293-294 [1995]). In opposition, the plaintiffs failed to raise a triable issue of fact. Therefore, summary judgment was properly granted to Abitol. Crane, J.E, Goldstein, Luciano and Dillon, JJ., concur.