Appellate Division, First Department, Grants Summary Judgment In Case Alleging Podiatric Malpractice

by | May 5, 2022 | Case Results, Medical Malpractice | 0 comments

Partners Gregory Cascino and Karen Corbett previously moved for summary judgment and dismissal of Plaintiff’s claims against MCB’s client, a podiatrist, demonstrating that he did not have any duty of care to the Plaintiff since he did not treat or even meet him. Rather all podiatric treatment at issue was performed by the separately represented Co-Defendant. We also stressed how our client did not have any duty to supervise the Co-Defendant since he did not personally employ him. Instead, the Co-Defendant was allegedly employed by a PC that our podiatrist was the sole shareholder of. Plaintiff both opposed the motion and cross-moved to amend the Complaint under the relation back doctrine to assert time-barred vicarious liability claims against the PC. The Bronx County Supreme Court denied our motion to dismiss the claims against our podiatrist client, and granted Plaintiff’s cross-motion to add the PC as a Defendant.

On MCB’s appeal the First Department reversed the Supreme Court in its entirety, and dismissed all claims against the podiatrist in his personal capacity, as well all claims against the PC. With regard to the podiatrist, the First Department noted that he was not involved in any aspect of Plaintiff’s care, and did not control Co-Defendant’s patient care in general. Moreover, even if the PC could be held vicariously liable for Co-Defendant’s conduct, vicarious liability would not justify personal liability for our client, even though he was the sole shareholder of the PC, as there are no facts to support piercing the corporate veil.

The First Department also found that Plaintiff should not have been permitted to amend the Complaint to add the PC as a Defendant because the malpractice claim was no longer timely and could not properly relate back to the filing of the original Complaint. Specifically it held that Plaintiff failed to establish that the PC should have known that but for a mistake by Plaintiff, the action would have been brought against it as well. The First Department noted, in particular, that the PC was identified by name on the medical paperwork Plaintiff received and signed at the time of treatment. Moreover, even if Plaintiff did not learn of the PC’s precise legal name until our client’s deposition, Plaintiff failed to offer any excuse for waiting another 18 months – after he filed a note of issue and MCB moved for summary judgment – to try and join the PC as a party.