Fassino v. Hudson Valley Family Dental Services, P. C. , 665 N.Y.S.2d 540 ( 1997 )

—In an action to recover damages for dental malpractice, the plaintiff appeals (1) from an order of the Supreme Court, Dutchess County (Jiudice, J.), entered September 24, 1996, which granted the motion of the defendant Fred Vecchione for summary judgment dismissing the complaint insofar as asserted against him as time-barred, and (2), as limited by her brief, from so much of an order of the same court, entered December 16, 1996, as (a) upon reargument, adhered to the original determination in the order entered September 24, 1996, and (b) granted the motion of the defendant Hudson Valley Family Dental Services, P. C., for summary judgment dismissing the complaint insofar as asserted against it on the ground that it was not vicariously liable for the acts of Fred Vecchione.

Ordered that the appeal from the order entered September 24, 1996, is dismissed, as that order was superseded by so much of the order entered December 16, 1996, as was made upon reargument; and it is further,

Ordered that the order entered December 16, 1996, is reversed insofar as appealed from, on the law, the order entered September 24, 1996, is vacated, and the motions of the defendants Fred Vecchione and Hudson Valley Family Dental Services, P. C., are denied; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

There are material questions of fact concerning whether Hudson Valley Family Dental Services, P. C., is vicariously liable for the alleged dental malpractice of Dr. Fred Vecchione (see, e.g., Raschel v Risk, 69 NY2d 694, 697; Hill v St. Clare’s Hosp., 67 NY2d 72). Accordingly, the motions of those defendants for summary judgment should have been denied (see, CPLR 203 [b]; Connell v Hayden, 83 AD2d 30, 47).

The appellant’s remaining contention is without merit (see, Claerbaut v East Long Is. Hosp., 117 AD2d 772). Mangano, P. J., Bracken, Altman and Goldstein, JJ., concur.