Respondeat superior.

The Second Department reinstated a complaint against the hospital, alleging vicarious liability for its employee's malpractice, even though the action against the physician had been dismissed for improper service, in Trivedi v. Golub, which was decided on December 4, 2007.

The court noted that, in an action against an employer based on respondeat superior, the employee who allegedly committed the tortious conduct is not a necessary party. Therefore, the fact that personal jurisdiction was not acquired over the physician did not warrant dismissal of the action as against the hospital.The court acknowledged that, in the absence of an employee's wrongful or actionable conduct, vicarious liability cannot be imposed on the employer. Here, though, the action against the physician was dismissed for a jurisdictional defect and did not go to the merits. Accordingly, said the court, there has been no determination with respect to whether the physician's conduct was either wrongful or actionable.