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Conti v. Frank10/18/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Marlow, J.P., Ellerin, Williams, Catterson, McGuire, JJ.
Index 102035/02
There appears to be no dispute that plaintiff would have no cause of action for legal malpractice based on defendant's failure to commence a timely action against a physician who treated plaintiff if, at the time of the alleged medical malpractice, such physician were an employee of the hospital against which defendant did commence a timely action. If so, then any medical malpractice committed by the physician would have been imputable to the hospital (see Hill v St. Clare's Hosp., 67 NY2d 72, 78-79 ), against which plaintiff could have recovered all of her damages, negating any "but for" causation between those damages and defendant's failure to sue the physician (see Reibman v Senie, 302 AD2d 290, 290 ). No issue of fact exists as to the existence of such an employment relationship, which on these facts is dispositive.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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