                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     519510
________________________________

LUKE TRIFILETTI, an Infant,
   by APRIL CRANKER,
   His Parent and Guardian,
   et al.,
                    Respondents,
      v
                                            MEMORANDUM AND ORDER
ELAINE HEE-YOUNG CHEON-LEE
   et al.,
                    Defendants,
      and

ELLIS HOSPITAL et al.,
                    Appellants.
________________________________


Calendar Date:   January 7, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


      Thorn Gershon Tymann & Bonanni, LLP, Albany (Mia D.
VanAuken of counsel), for appellants.

      Law Firm of Jonathan Reiter, New York City (Jonathan C.
Reiter of counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Reilly Jr., J.),
entered March 14, 2014 in Schenectady County, which, among other
things, denied a motion by defendants Ellis Hospital and Bellevue
Woman's Medical Center, Inc. for summary judgment dismissing the
complaint against them.
                              -2-                519510

      Plaintiff April Cranker (hereinafter the mother) gave birth
via cesarean section to plaintiff Luke Trifiletti (hereinafter
the child) at defendant Bellevue Woman's Medical Center, Inc.
Defendant Elaine Hee-Young Cheon-Lee, the mother's obstetrician,
performed the surgical procedure. During the procedure, Cheon-
Lee was initially unable to remove the child because his head was
deep in the birth canal. An unidentified nurse inserted a hand
vaginally to push the child's head up the canal so Cheon-Lee
could remove the child through the surgical incision. Although
not noted immediately, the child developed difficulties within a
day and was discovered to have suffered a fractured skull and
other asserted serious injuries.

      Plaintiffs commenced this action against various defendants
including, as relevant to this appeal, Bellevue and defendant
Ellis Hospital (hereinafter collectively referred to as
defendants) alleging, among other things, that the unidentified
nurse employed by defendants who assisted Cheon-Lee applied
excessive force to the child's head causing his injuries.
Defendants moved for summary judgment dismissing the complaint
against them contending that they were not liable since Cheon-Lee
was not their employee and their nurse allegedly acted at her
request and under her supervision. Supreme Court denied the
motion and defendants now appeal.

      "It is well settled that, in general, a hospital may not be
held vicariously liable for the malpractice of a private
attending physician who is not an employee, and may not be held
concurrently liable unless its employees committed independent
acts of negligence or the attending physician's orders were
contraindicated by normal practice such that ordinary prudence
required inquiry into the correctness of the attending
physician's orders" (Wulbrecht v Jehle, 92 AD3d 1213, 1214 [2012]
[internal quotation marks, brackets and citation omitted]; see
Zhuzhingo v Milligan, 121 AD3d 1103, 1106 [2014]; Sledziewski v
Cioffi, 137 AD2d 186, 188-190 [1988]). Cheon-Lee testified that
she could not remember who assisted her by attempting to flex the
child's head and, although she acknowledged that she would
usually ask a nurse to push "from below" as she "reach[ed] from
above," she could not recall whether she had requested or
instructed anyone to assist her during this particular procedure.
                              -3-                  519510

Defendants' expert stated that a nurse would perform this type of
assistance only if requested by the attending physician, such
assistance is not uncommon and the amount of force that could be
employed by such assistance could not have fractured the child's
skull.

      Plaintiffs' expert, however, opined that the child's
injuries would not have occurred "in the absence of excessive
force," there was "no possibility" that the child's skull was
fractured in utero and there was "no evidence" that the injuries
occurred after delivery. He stated that, although the maneuver
used to free the child's head should be "done in a gently non-
traumatic fashion, there is clearly the potential to cause
serious injury . . . if excessive force is used." He set forth
his opinion to a reasonable degree of medical certainty that the
child's injuries were caused by the use of excessive force.
Viewing the evidence in the light most favorable to plaintiffs as
the parties opposing summary judgment (see e.g. Zapata v
Buitriago, 107 AD3d 977, 978 [2013]; Coyle v Bommarito, 106 AD3d
1324, 1327 [2013]), there is a factual issue as to whether one of
defendants' nurses engaged in an act of independent negligence by
using excessive force not requested by Cheon-Lee when attempting
to flex or push the child's head from the birth canal.

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
