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

738
CA 11-00217
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


DORETHA WILLIAMS, AS ADMINISTRATRIX OF THE
ESTATE OF STEVEN K. WILLIAMS, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RONALD M. MOSCATI, JR., M.D., ET AL., DEFENDANTS,
AND ERIE COUNTY MEDICAL CENTER CORPORATION,
DEFENDANT-APPELLANT.


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered September 17, 2010 in a medical malpractice
action. The order, insofar as appealed from, denied in part the
motion of defendant Erie County Medical Center Corporation for summary
judgment.

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

     Memorandum: Plaintiff, as administratrix of the estate of her
son (decedent), commenced this action seeking damages for his wrongful
death and conscious pain and suffering allegedly caused by defendants’
medical malpractice. Defendant Erie County Medical Center Corporation
(ECMCC) appeals from an order insofar as it denied those parts of its
motion seeking summary judgment dismissing the wrongful death claims
against it. We affirm.

     ECMCC correctly concedes that it may be held vicariously liable
for the negligent acts of defendant Ronald M. Moscati, Jr., M.D., a
private attending physician who treated decedent in ECMCC’s emergency
department (see generally Henderson v Marx, 251 AD2d 988; Mduba v
Benedictine Hosp., 52 AD2d 450, 453). ECMCC contends, however, that
Supreme Court erred in denying its motion with respect to its
liability for the acts of defendant Erum Ansari, M.D., a fellow in
pediatric emergency medicine who treated decedent under the
supervision of Dr. Moscati. We reject that contention. Even
assuming, arguendo, that ECMCC met its initial burden with respect to
Dr. Ansari, plaintiff submitted an expert affidavit raising a triable
                                 -2-                           738
                                                         CA 11-00217

issue of fact whether Dr. Ansari exercised medical judgment
independent from that of Dr. Moscati (see generally Lorenzo v Kahn, 74
AD3d 1711, 1713; Soto v Andaz, 8 AD3d 470, 471; Pearce v Klein, 293
AD2d 593). ECMCC further contends that the court erred in denying its
motion with respect to its liability for the acts of ECMCC’s staff.
We reject that contention inasmuch as plaintiff has asserted no direct
claims against ECMCC’s staff.




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