mercy defendant in New York

2016Here, in appeal No. 1, we conclude that plaintiff, through the testimony of her expert, presented legally sufficient evidence from which a jury could have concluded that the alleged negligence of the Mercy defendants’ nursing staff deprived decedent of the substantial possibility of surviving the bowel perforation and resultant peritonitis that led to the death (see Wolf, 130 AD3d at 1525 ; see Goldberg, 73 AD3d at 694 ).

2016Here, in appeal No. 1, we conclude that plaintiff, through the testimony of her expert, presented legally sufficient evidence from which a jury could have concluded that the alleged negligence of the Mercy defendants’ nursing staff deprived decedent of the substantial possibility of surviving the bowel perforation and resultant peritonitis that led to the death (see Wolf, 130 AD3d at 1525 ; see Goldberg, 73 AD3d at 694 ).

2021Here, the Mercy defendants established through the submission of Bancroft's deposition testimony that Bancroft was a member of an independent group of anesthesiologists and not an employee of Mercy Hospital ( see Sampson v Contillo , 55 AD3d 588, 590-591 [2d Dept 2008]; cf. Dupree v Westchester County Health Care Corp ., 164 AD3d 1211 , 1213-1214 [2d Dept 2018]).

2020Turning to the branches of the hospital defendants' motion which were with respect to the Mercy defendants, " [a]s a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee'" ( Galluccio v Grossman , 161 AD3d 1049 , 1052, quoting Padula v Bucalo , 266 AD2d 524, 524 ; see Sampson v Contillo , 55 AD3d 588, 589 ).

2026Initially, we dismiss the appeal from that part of the order granting in part the Mercy defendants' motion inasmuch as plaintiffs failed to provide an adequate record to permit meaningful appellate review thereof ( see Walker v County of Monroe , 216 AD3d 1429 , 1429 [4th Dept 2023]; O ' Neill v O ' Neill , 174 AD3d 1526 , 1527 [4th Dept 2019]; Mergl v Mergl , 19 AD3d 1146, 1147 [4th Dept 2005]).

2025"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" ( Sunshine v Berger , 214 AD3d 1020, 1022 [internal quotation marks omitted]).

2024Discussion With respect to that branch of Mercy's motion which is pursuant to CPLR 3211(a)(7), it is well settled on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Leon v Martinez , 84 NY2d 83 [1994]). "'Where a court considered evidentiary material in determining a motion to dismis

2024Corp. , 220 AD3d 668, 669 [2d Dept 2023], quoting Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 142 [2017]).

2024Moreover, contrary to Mercy's further contention, the opinion of the plaintiffs' expert that Mercy's staff failed to recognize signs of an infection or conduct adequate testing and treatment relating thereto was not, under the circumstances presented, a new theory of liability improperly asserted for the first time in opposition to Mercy's motion for summary judgment, but instead "merely expounded upon the allegations in the bill of particulars" ( Cox v Herzog , 192 AD3d 757, 759 ; see Khutoryanskaya v Laser & Microsurgery, P.C. , 222 AD3d 633, 635 ).

2024Discussion With respect to that branch of Mercy's motion which is pursuant to CPLR 3211(a)(7), it is well settled on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Leon v Martinez , 84 NY2d 83 [1994]). "'Where a court considered evidentiary material in determining a motion to dismis

2024Discussion With respect to that branch of Mercy's motion which is pursuant to CPLR 3211(a)(7), it is well settled on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Leon v Martinez , 84 NY2d 83 [1994]). "'Where a court considered evidentiary material in determining a motion to dismis

2024Corp. , 220 AD3d 668, 669 [2d Dept 2023], quoting Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 142 [2017]).

2023Inasmuch as the Mercy defendants failed to establish that plaintiff had knowledge of Occhino's specific relationship to Mercy Hospital, a question of fact remains whether plaintiff reasonably could have believed that Occhino was acting on Mercy Hospital's behalf and whether she reasonably relied on that belief when accepting services from Mercy Hospital to treat Lewis ( see generally Brink v Muller , 86 AD3d 894, 897 [3d Dept 2011]).

2023Inasmuch as the Mercy defendants failed to establish that plaintiff had knowledge of Occhino's specific relationship to Mercy Hospital, a question of fact remains whether plaintiff reasonably could have believed that Occhino was acting on Mercy Hospital's behalf and whether she reasonably relied on that belief when accepting services from Mercy Hospital to treat Lewis ( see generally Brink v Muller , 86 AD3d 894, 897 [3d Dept 2011]).

2021We reject that contention. "[I]t 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' " ( Lorenzo v Kahn , 74 AD3d 1711, 1712-1713 [4th Dept 2010]; see Wulbrecht v Jehle , 92 AD3d 1213, 1214 [4th Dept 2012]).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).

2021The Mercy defendants also submitted a letter from Bell-Thomson to Pasek, which explained that Bell-Thomson and members of his team would coordinate Pasek's care, that Mercy Hospital would not be directly overseeing or coordinating Pasek's care during his admission to the hospital, and that Mercy Hospital would not be actively involved in arranging for Pasek's incidental care, which might involve other medical specialties such as anesthesiology and perfusion services ( see Giambona v Hines , 104 AD3d 807, 811 [2d Dept 2013]; Nagengast , 211 AD2d at 879 ).

2021The Mercy defendants also submitted a letter from Bell-Thomson to Pasek, which explained that Bell-Thomson and members of his team would coordinate Pasek's care, that Mercy Hospital would not be directly overseeing or coordinating Pasek's care during his admission to the hospital, and that Mercy Hospital would not be actively involved in arranging for Pasek's incidental care, which might involve other medical specialties such as anesthesiology and perfusion services ( see Giambona v Hines , 104 AD3d 807, 811 [2d Dept 2013]; Nagengast , 211 AD2d at 879 ).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).

2021Contrary to plaintiff's contention, the Mercy defendants' submissions did not raise a question of fact whether Mercy Hospital held out Bancroft as an employee and whether Pasek reasonably relied upon that misrepresentation in accepting Bancroft's medical services ( see generally King v Mitchell , 31 AD3d 958, 959-960 [3d Dept 2006]).

2021Contrary to plaintiff's contention, the Mercy defendants' submissions did not raise a question of fact whether Mercy Hospital held out Bancroft as an employee and whether Pasek reasonably relied upon that misrepresentation in accepting Bancroft's medical services ( see generally King v Mitchell , 31 AD3d 958, 959-960 [3d Dept 2006]).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).

2021With respect to the claim of vicarious liability for the conduct of Support Services, the Mercy defendants met their initial burden of establishing that Mercy Hospital did not employ Support Services or its employees ( see generally Orgovan v Bloom , 7 AD3d 770, 771 [2d Dept 2004]) and did not exercise control over them ( see Dolan v Jaeger , 285 AD2d 844, 846 [3d Dept 2001]; cf. Contreras v Adeyemi , 102 AD3d 720, 722-723 [2d Dept 2013]).