In a medical malpractice action, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Dutchess County (Beisner, J.), entered November 4, 1992, as granted the motion for summary judgment of the defendants James Keeley and Vassar Brothers Hospital, and dismissed the complaint insofar as it is asserted against them, and (2) a judg
Ordered that the cross appeal from the order is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
The cross appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in favor of Jack Goodman (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the cross appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The Supreme Court properly granted summary judgment to the defendant Vassar Hospital, since there was no evidence to support the imposition of vicarious liability upon it (see, Public Health Law § 2805-d [1]; Kavanaugh v Nussbaum, 71 NY2d 535, 546-547; Hill v St. Clare’s Hosp., 67 NY2d 72, 79; Ruane v Niagara Falls Mem. Med. Ctr., 60 NY2d 908; Fiorentino v Wenger, 19 NY2d 407, 414; Culkin v Nassau Hosp. Assn., 143 AD2d 973, 974; Brandon v Karp, 112 AD2d 490; Mertsaris v 73rd Corp., 105 AD2d 67, 79-81). The Supreme Court also properly granted summary judgment to the defendant James K. Keeley, the attending surgeon, as there was no evidence that Keeley departed from accepted medical practice and standards, and, as an attending surgeon, Keeley had no duty to obtain Mr. Tibodeau’s informed consent (see, Spinosa v Weinstein, 168 AD2d 32, 39-40).
The Supreme Court also properly granted the defendant Jack Goodman’s motion to dismiss the complaint insofar as it is asserted against him at the close of the plaintiffs’ case. During their case, the plaintiffs utilized Goodman as their expert, and he testified that while he informed Mr. Tibodeau that he required an operation to clamp an aneurysm, he only
In addition, a trial order of dismissal was also properly granted because the plaintiffs failed to demonstrate that a reasonable person in Mr. Tibodeau’s position would have opted against the surgery had he been fully informed of the risks and alternatives and that the surgical procedure was the proximate cause of his injuries (see, Public Health Law § 2805-d [2], [3]; CPLR 4401-a; Shinn v St. James Mercy Hosp., 675 F Supp 94, 100, affd 847 F2d 836; Davis v Caldwell, 54 NY2d 176, 182; Briggins v Chynn, 204 AD2d 158; Eppel v Fredericks, 203 AD2d 152; Evans v Holleran, 198 AD2d 472; Bernard v Block, 176 AD2d 843, 848; Dodes v North Shore Univ. Hosp., 149 AD2d 455; Culkin v Nassau Hosp. Assn., supra, at 973; Goodreau v State of New York, 129 AD2d 978; Hylick v Halweil, supra).
In view of this determination, the issues raised upon Goodman’s cross appeal from the order denying his motion for summary judgment are academic. We have considered all of the plaintiffs’ remaining contentions and find them to be without merit. Mangano, P. J., Thompson, O’Brien and Ritter, JJ., concur.