Czeladzinski v. County of Erie , 737 N.Y.S.2d 567 ( 2002 )

—Appeal from that part of an order of Supreme Court, Erie County (Mintz, J.), entered December 1, 2000, that upon reargument adhered to the prior decision granting defendant’s motion for summary judgment.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, defendant’s motion is denied and the complaint is reinstated.

Memorandum: Plaintiffs appeal from that part of an order in this medical malpractice action that upon reargument adhered to the prior decision granting defendant’s motion for summary judgment dismissing the complaint. We conclude that Supreme Court erred in granting defendant’s motion. Defendant failed to present evidence in admissible form demonstrating that there are no material issues of fact and thus failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In any event, we further conclude that plaintiffs raised a triable issue of fact whether plaintiff Donald Czeladzinski’s treatment was being rendered under the apparent authority of the Erie County Medical Center and thus whether defendant may be held vicariously liable for the alleged malpractice (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 79-81; Duncan v Mount St. Mary’s Hosp. of Niagara Falls, 176 Misc 2d 201, 202-203). Present — Wisner, J.P., Hurlbutt, Kehoe, Burns and Lawton, JJ.