674 N.Y.S.2d 247 | N.Y. App. Div. | 1998
—Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Plaintiff commenced this action on September 26, 1996 to recover for injuries resulting from the alleged negligence of defendant William Marx, M.D., in damaging her common bile duct during gall bladder surgery performed at defendant St. Elizabeth Hospital (Hospital) on March 30, 1993. Supreme Court erred in granting the motion of Dr. Marx for summary judgment dismissing the complaint as barred by the Statute of Limitations and the cross motion of the Hospital insofar as it sought the same relief (see, CPLR 214-a). Plaintiff’s submissions raise triable issues of fact with respect to the applicability of the continuous treatment doctrine (see, McDermott v Torre, 56 NY2d 399, 406; Neureuther v Calabrese, 195 AD2d 1035, 1035-1036). In addition, the Hospital failed to establish as a matter of law that it is not vicariously liable for the alleged negligence of Dr. Marx. Although the Hospital submitted the affidavit of its chief operating officer asserting that Dr. Marx was not a Hospital employee at the time of the alleged malpractice, “[a] hospital may be