—Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 19, 1999, which, in an action for medical malpractice, insofar as appealed from, granted the motion of defendant health maintenance organization for summary judgment dismissing the complaint as against it, affirmed, without costs.
Defendant movant cannot be held vicariously liable for defendant doctors’ and hospital’s alleged malpractice in discharging plaintiff and her baby prematurely, where the documentary evidence, including, in particular, plaintiff’s Group Master Contract, membership card and Member Handbook, clearly states that doctors and hospitals participating in defendant’s health care program are independent contractors (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 79-81).
While it does appear that defendant’s program contemplated a hospital stay of no more than 24 hours for a normal vaginal delivery, it remains a fact, established by documentary evidence and defendant doctors’ admissions, that the treating doctors had full authority to decide when the mother and/or baby could be discharged, and that a stay of more than 24 hours would be covered if medically justified. 348 As to the dissent’s assertion that summary judgment should be denied because defendant was guilty of “abetting the unauthorized practice of medicine” by “[e]mploying a nursing service to perform a function requiring diagnostic skills [of a physician],” plaintiff did not advance this as a ground for liability before Supreme Court or, for that matter, before this Court.
In view of this, we are precluded from considering this theory of liability sua sponte (see, Lichtman v Grossbard, 73 NY2d 792, 794; Lefkowitz v Lebensfeld, 51 NY2d 442, 447-448; Wells v Fisher, 237 NY 79, 84; Lindgren v New York City Hous. Auth., 269 AD2d 299; Matter of Travelers Indent. Co. [Levy], 195 AD2d 35, 41).
Moreover, even if we were to consider this theory, the record does not support the view that the nurse was sent in lieu of a physician or that she performed services outside the scope of her licensure. We have examined plaintiffs’ remaining contentions and find them to be without merit. Concur — Rosenberger, J. P., Tom and Friedman, JJ.
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