        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

673
CA 10-01799
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND MARTOCHE, JJ.


JOSEPH MORAN AND ROSE MARIE MORAN,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

JOSEPH L. MUSCARELLA, JR., D.O., ET AL.,
DEFENDANTS,
KALEIDA HEALTH, BUFFALO GENERAL HOSPITAL,
MELINDA S. BARONE, RNFA, SINISA MARKOVIC, M.D.,
AND BUFFALO ANESTHESIA ASSOCIATES, P.C.,
DEFENDANTS-RESPONDENTS.


GELBER & O’CONNELL, LLC, AMHERST (HERSCHEL GELBER OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MARK D. ARCARA OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS KALEIDA HEALTH, BUFFALO GENERAL HOSPITAL,
AND MELINDA S. BARONE, RNFA.

BROWN & TARANTINO, LLC, BUFFALO (SUSAN A. EBERLE OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS SINISA MARKOVIC, M.D. AND BUFFALO ANESTHESIA
ASSOCIATES, P.C.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered May 19, 2010 in a medical malpractice action.
The order granted the motions of defendants Kaleida Health, Buffalo
General Hospital, Melinda S. Barone, RNFA, Sinisa Markovic, M.D., and
Buffalo Anesthesia Associates, P.C. for summary judgment dismissing
the complaint and all cross claims against them.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this medical malpractice action
to recover damages for injuries sustained by Joseph Moran (plaintiff)
while he was undergoing a total thyroidectomy, central node dissection
and right lateral node dissection. Defendant Joseph L. Muscarella,
Jr., D.O., plaintiff’s private physician, performed the surgery at
defendant Buffalo General Hospital (Hospital), which was owned,
operated and controlled by defendant Kaleida Health (Kaleida). Dr.
Muscarella was assisted by, inter alia, defendant Melinda S. Barone,
RNFA, who was employed by the Hospital. Dr. Muscarella was also
assisted by defendant Sinisa Markovic, M.D., who was employed by
defendant Buffalo Anesthesia Associates, P.C. (collectively, Markovic
                                 -2-                           673
                                                         CA 10-01799

defendants). According to plaintiffs, defendants improperly
positioned him using two positioning devices during the surgery,
causing him to sustain injuries to his back and right arm. We
conclude that Supreme Court properly granted the motion of Barone, the
Hospital and Kaleida (collectively, Hospital defendants), as well as
the motion of the Markovic defendants, for summary judgment dismissing
the complaint and all cross claims against them.

     We conclude that the Hospital defendants established their
entitlement to judgment as a matter of law. It is well settled that,
“[i]n 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 [his or her orders]” (Toth v
Bloshinsky, 39 AD3d 848, 850). Here, it is undisputed that Dr.
Muscarella was a private physician chosen by plaintiff. It is also
undisputed that the Hospital’s employees were following the orders of
Dr. Muscarella and that he had the ultimate responsibility in
positioning plaintiff with the positioning devices used during the
surgery. There is also no evidence that Dr. Muscarella’s orders “were
contraindicated by normal practice such that ordinary prudence
required inquiry into the correctness of [his orders]” (id.; see
Lorenzo v Kahn, 74 AD3d 1711, 1712-1713).

     We further conclude that the Markovic defendants established
their entitlement to judgment as a matter of law. In support of their
motion, the Markovic defendants submitted, inter alia, Dr. Markovic’s
expert affirmation in which he opined that the care and treatment of
plaintiff was at all times within the standard of care. Dr. Markovic
also averred that it was Dr. Muscarella’s responsibility to position
plaintiff using the positioning devices (see generally Graziano v
Cooling, 79 AD3d 803, 804).

     Once the Hospital defendants and the Markovic defendants
established their entitlement to judgment as a matter of law, “[t]he
burden then shifted to plaintiffs to raise triable issues of fact by
submitting a physician’s affidavit both attesting to a departure from
accepted practice and containing the attesting [physician’s] opinion
that [those] defendant[s’] omissions or departures were a competent
producing cause of the injury” (O’Shea v Buffalo Med. Group, P.C., 64
AD3d 1140, 1141, lv dismissed 13 NY3d 834 [internal quotation marks
omitted]). Contrary to plaintiffs’ contention, the expert affidavits
submitted in opposition to the motions “are speculative [and]
unsupported by any evidentiary foundation” (Diaz v New York Downtown
Hosp., 99 NY2d 542, 544), and thus they are insufficient to raise
triable issues of fact. We have reviewed plaintiffs’ remaining
contention and conclude that it is without merit.


Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
