WEINBERG v. Selig Strax, M.D., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Max WEINBERG, Individually and as Executor of Beatrice Weinberg, Deceased, Plaintiff-Respondent, v. The GUTTMAN BREAST AND DIAGNOSTIC INSTITUTE, Defendant-Appellant, Selig Strax, M.D., et al., Defendants.

Decided: October 27, 1998

Milonas, J.P., Ellerin, Wallach and Tom, JJ. Christina Ctorides, for Plaintiff-Respondent. Gerard J. Heubel, for Defendant-Appellant.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about November 13, 1997, which denied defendant Guttman Breast and Diagnostic Institute's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion with respect to plaintiff's negligent hiring claims, and otherwise affirmed, without costs.

 The affidavit of plaintiff's expert, a board certified gynecologist and obstetrician, was sufficient to demonstrate the existence of triable issues of fact respecting plaintiff's claims for medical malpractice, which include defendant-appellant's failure to timely detect decedent's metastatic breast cancer, and thus precluded the grant of defendant Institute's motion for summary judgment as to those claims (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642).   However, plaintiff's claims against the Guttman Institute alleging that it negligently supervised and retained its employees should have been dismissed since where, as here, an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention (Karoon v. New York City Trans. Auth., 241 A.D.2d 323, 659 N.Y.S.2d 27).