BURG v. HEALTH CARE PLAN

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

Donald BURG, Plaintiff-Appellant, v. HEALTH CARE PLAN, Defendant-Respondent, et al., Defendants. (Appeal No. 1.)

Decided: March 21, 2001

PRESENT:  GREEN, J.P., WISNER, HURLBUTT and BURNS, JJ. Michael R. Drumm, for plaintiff-appellant. Michael J. Willet, for defendant-respondent.

We agree with plaintiff that Supreme Court erred in granting the motion of defendant Health Care Plan for summary judgment dismissing the complaint against it (appeal No. 1).   Public Health Law § 4410(1) does not preclude a health maintenance organization from being held vicariously liable for the malpractice of its physician employees (see, Wisholek v. Douglas [appeal No. 2], 280 A.D.2d 220, 722 N.Y.S.2d 316 [decided herewith] ).   We disagree with plaintiff, however, that the court erred in granting the motion of defendant David B. Lillie, M.D. for summary judgment dismissing the complaint against him (appeal No. 2).   He established that his actions were not a proximate cause of plaintiff's injuries, and plaintiff failed to raise an issue of fact (see generally, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Order unanimously reversed on the law without costs, motion denied and complaint against defendant Health Care Plan reinstated.

MEMORANDUM: