Supreme Court, Bronx County, March 22, 2018

Milber, Makris, Plousadis & Seiden, LLP, White Plains (Robin A. Schair of counsel), for Uptown Healthcare Management, Inc., doing business as The Ambulatory Surgery Center of East Tremont Medical Center, defendant.

Ginarte O'Dwyer Gonzalez Gallardo & Winograd, LLP, New York City (Glen Verchick of counsel), for plaintiff.

Ellenberg Gannon Henninger Fitzmaurice & Lim, LLP, New York City (Corey Shulman of counsel), for David J. Fleiss, M.D., defendant.

The defendant, The Ambulatory Surgery Center of East Tremont Medical Center (ASCETMC), moves for summary judgment (CPLR 3212) dismissal of the instant complaint, which alleges two causes of action: medical malpractice and lack of informed consent. Specifically, ASCETMC argues that plaintiff is unable to establish vicarious liability against it based on the alleged malpractice and lack of informed consent by the defendant, Dr. Fleiss. In opposing the motion, the plaintiff also cross-moves to amend (CPLR 305 [c]; 2001) the caption to correct ASCETMC's name to read "Uptown Healthcare Management, Inc. d/b/a The Ambulatory Surgery Center of East Tremont Medical Center," and for summary judgment (CPLR 3212) on the issue of liability as against all of the defendants. The complaint in this action alleges that the defendants were negligent in the performance of an arthroscopic surgery of the plaintiff's left knee, which was done by Dr. Fleiss at ASCETMC's facility on September 11, 2013. It further alleges that as a result of said negligence, the plaintiff suffered severe and permanent damage to her peroneal nerve and a dropped left foot.

A representative of ASCETMC was never deposed in this action; therefore, ASCETMC includes an affidavit from its chief compliance officer, Hosam El-Sherbiny, in support of its motion. According to El-Sherbiny, Uptown Healthcare Management, Inc. owns and operates three centers: (1) East Tremont Medical Center (also known as ASCETMC), (2) Jerome Family Health Center and (3) New York Neuro & Rehab Center. Dr. Fleiss is a board-certified orthopedic surgeon who was initially granted surgical privileges at ASCETMC in July 2009, and said privileges have been subsequently renewed every two years. El-Sherbiny further states that Dr. Fleiss is an independent contractor and not an employee of Uptown or any of its three centers, and they do not supervise Dr. Fleiss' surgical{**59 Misc 3d at 352} plan or technique in any way whatsoever. It appears that on July 11, 2013, the plaintiff presented to Gilberto Amandor, PA, at the Jerome Family Health Center for an orthopedic consultation. On August 8, 2013, after having obtained an X ray and MRI of her left knee, the plaintiff had a follow-up visit with Amandor who noted that the MRI revealed a new, complex, multioculated LCC ganglion cyst and mild joint effusion with synovitis. Amandor then referred the plaintiff to Dr. Fleiss for further evaluation. On August 20, 2013, the plaintiff saw Dr. Fleiss, and according to his "SOAP Note" from that day, the possibility of an open excision of the ganglion cyst was discussed.

The evidentiary proof clearly establishes that Dr. Fleiss was not an employee of ASCETMC; therefore, the general rule that a medical facility is liable for the malpractice of its employee(s) does not apply. (Bing v Thunig, 2 NY2d 656 [1957].) On the other hand, ASCETMC may be held vicariously liable on the theory of agency/control in fact, or in the alternative theory of apparent/ostensible agency. (Hill v St. Clare's Hosp., 67 NY2d 72 [1986].) According to ASCETMC, it cannot be held liable under a theory of agency/control in fact because Dr. Fleiss was an independent contractor with his own private practice who had no control over the facility's administration or operation, and over whom it had no supervisory duties, powers or control with respect to the manner in which Dr. Fleiss treated the plaintiff. (Id.) Where control is absent, then liability may still exist under the theory of apparent/ostensible agency, which focuses on whether the plaintiff could have reasonably believed based upon the surrounding circumstances that Dr. Fleiss was provided to her by ASCETMC, or was otherwise acting on its behalf. (Thurman v United Health Servs. Hosps., Inc., 39 AD3d 934 [3d Dept 2007].) It bears noting that ASCETMC was not obligated to affirmatively disclaim Dr. Fleiss as an independent contractor in order to avoid the creation of apparent/ostensible agency. (Id.) In addition, ASCETMC advised the plaintiff in writing (in English and Spanish) that she had the right to choose where to receive services, and that Bronx Lebanon and Lincoln Hospitals were two reasonable alternatives. And as ASCETMC correctly points out, this is not your typical apparent/ostensible agency situation in which a patient requires emergency treatment at a hospital. Here, the plaintiff was referred to Dr. Fleiss for an orthopedic consultation by Mr. Amandor on August 8, 2013, and it appears that [*2]plaintiff{**59 Misc 3d at 353} scheduled an appointment with Dr. Fleiss for August 20, 2013. After her consultation with Dr. Fleiss, the plaintiff elected to have him perform the surgery on September 11, 2013. Lastly, ASCETMC emphasizes that this action is predicated solely upon the alleged malpractice of Dr. Fleiss' surgery. Based on the aforementioned, ASCETMC argues that it cannot be held vicariously liable.

ASCETMC also seeks dismissal of the plaintiff's cause of action for lack of informed consent. Pursuant to section 2805-d (1) and (3) of the Public Health Law, lack of informed consent arises when a reasonably prudent person in the patient's position would not have undergone the treatment if she had been fully informed of the alternative(s) and the reasonably foreseeable risk(s). According to ASCETMC, the plaintiff was specifically informed of the risks of and alternatives to the surgery by Dr. Fleiss during the orthopedic consultation on August 20, 2013. Specifically, Dr. Fleiss' notes indicate that plaintiff was informed that the ganglion cyst present on her left knee was not cancerous, that she could live with it, of the risks and negative outcomes, that recurrence is common, and of the possibility of nerve injury causing left leg weakness, pain and sensory loss. ASCETMC argues that even if somehow it were found vicariously liable, the documentary evidence establishes that plaintiff's lack of informed consent cause of action requires dismissal. Overall, given the aforementioned, the court is satisfied that ASCETMC has met its burden of producing evidentiary proof in admissible form sufficient to establish an entitlement to summary judgment. (Zuckerman v City of New York, 49 NY2d 557 [1980].) As the court's function in deciding a motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), the burden now shifts to the plaintiff to likewise submit proof in admissible form sufficient to create issues of fact to warrant a trial (Kosson v Algaze, 84 NY2d 1019 [1995]).

In opposition, the plaintiff also cross-moves (1) to amend (CPLR 305 [c]) ASCETMC's name on the caption to now read "Uptown Healthcare Management, Inc. d/b/a The Ambulatory Surgery Center of East Tremont Medical Center," and (2) for summary judgment (CPLR 3212) on the issue of liability against both defendants. As the plaintiff merely seeks to amend the caption to reflect the defendant's proper identity, ASCETMC has no opposition, and therefore that portion of the cross motion is granted without objection. The caption is{**59 Misc 3d at 354} amended accordingly and ASCETMC is hereinafter referred to as "Uptown/ASCETMC." However, there appears to be a variety of problems with the summary judgment relief sought by plaintiff via the cross motion. First there is an issue as to timeliness in that plaintiff, who filed her note of issue on June 26, 2017, had 120 days from said date (i.e., Oct. 24, 2017) to seek summary judgment. (CPLR 3212 [a].) Here, the plaintiff's notice of cross motion is dated November 20, 2017, which is 27 days past the statutorily imposed deadline for summary judgment. And although an untimely motion for summary judgment may still be considered with leave of court on good cause (Brill v City of New York, 2 NY3d 648 [2004]), the plaintiff's cross motion is devoid of any explanation for its delay, let alone good cause. Now it's true that since Brill was decided by the Court of Appeals, the First Department has permitted untimely yet correctly labeled cross motions to be considered at least on the issue(s) that are the same in both, without needing to show good cause. (See e.g. Palomo v 175th St. Realty Corp., 101 AD3d 579 [1st Dept 2012]; Conklin v Triborough Bridge & Tunnel Auth., 49 AD3d 320 [1st Dept 2008]; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007].) However, here the plaintiff's cross motion, in addition to being untimely, is not a true cross motion.

In its simplest form, a cross motion is really just a motion by a party made against another party's original motion (CPLR 2215), and the resulting well-settled rule is that a cross motion is not a proper vehicle for seeking relief against a nonmoving party. (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843 [2d Dept 1986].) Of course, some courts have overlooked the erroneous labeling of a cross motion in those instances where there is no objection by, and no prejudice to the nonmovant. (Sheehan v Marshall, 9 AD3d 403 [2d Dept 2004].) That is not the case here because the nonmovant, Dr. Fleiss, in his opposition papers does object to the cross motion, and further alleges that ignoring the bright-line rule set forth in Brill so as to consider the instant [*3]untimely cross motion without good cause would provide the plaintiff with an unfair and improper advantage. (Kershaw v Hospital for Special Surgery, 114 AD3d 75 [1st Dept 2013].) This court is in agreement, and therefore, based on the aforementioned, the plaintiff's cross motion is denied as untimely.{**59 Misc 3d at 355}

Although the cross motion has been denied, there still remains opposition by the plaintiff to Uptown/ASCETMC's summary judgment motion. The affirmation by plaintiff's attorney argues that "Dr. Fleiss was provided to the plaintiff by the clinic," and that "the plaintiff reasonably believed that [Dr. Fleiss] was acting at the hospital's behest." However, the affidavit by El-Sherbiny and the deposition transcript of Dr. Fleiss both establish that Dr. Fleiss was an independent contractor and not an employee of Uptown/ASCETMC, and that Uptown/ASCETMC did not supervise or exercise any control over Dr. Fleiss. In addition, the documentary evidence does not establish that Uptown/ASCETMC actually provided Dr. Fleiss to the plaintiff. At most it reveals that Mr. Amandor from the Jerome Family Health Center (and not Uptown/ASCETMC) referred the plaintiff to Dr. Fleiss. While the aforementioned precludes a finding of vicarious liability under a theory of agency/control in fact, the plaintiff's attorney notes that vicarious liability may still lie under the theory of apparent/ostensible agency.

Apparent/ostensible agency has been applied to hold a medical facility responsible for the malpractice of a physician providing services there, despite the physician's status as an independent contractor, where medical care was sought by a patient from the facility rather than from a particular physician. (Hill, 67 NY2d 72.) As already noted earlier, the application of this theory depends upon whether the plaintiff could have reasonably believed, based upon all of the surrounding circumstances, that the physician was provided by the facility or was otherwise acting on its behalf. (Soltis v State of New York, 172 AD2d 919 [3d Dept 1991].) Essential to this claim is the existence of words or conduct on the part of the facility that would give rise to the appearance and belief that the physician was acting on its behalf (Hallock v State of New York, 64 NY2d 224 [1984]), in addition to the plaintiff's reliance upon that apparent authority. (Garofolo v State of New York, 135 AD3d 1108 [3d Dept 2016].) In support of this claim, the plaintiff's opposition papers include an affidavit from the plaintiff herself. The second paragraph of the plaintiff's affidavit states that she "supports all the [sic] statements made in my attorney's accompanying affirmation . . . which was translated to me, as I have only a little familiarity with the English language." However, nowhere does she state that her affidavit was also translated to her, nor is there an accompanying affidavit from a qualified translator. (CPLR 2101 [b].) An attempt is made to correct this defect by including a translator's affidavit in the subsequent reply papers.{**59 Misc 3d at 356}^[FN*] But this does not resolve the obvious defect in plaintiff's actual affidavit in that plaintiff failed to state that it was in fact translated to her. As such, this obvious defect in the affidavit itself renders it facially defective and inadmissible (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept 2011]), and moreover, insufficient to oppose Uptown/ASCETMC's motion for summary judgment.

Therefore, the instant motion by Uptown/ASCETMC for summary judgment is granted and the plaintiff's claims against Uptown/ASCETMC are dismissed.