| Oviedo v Weinstein |
| 2013 NY Slip Op 00315 [102 AD3d 844] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Aristobulo Oviedo, Appellant, v Eric Weinstein etal., Respondents. |
—[*1] Chesney & Nicholas, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), forrespondents Eric Weinstein and Island Dental Associates, PLLC. Kolenovsky & Spiegel, LLP, New York, N.Y. (James Modzelewski of counsel), forrespondent Sultan Salem.
In an action, inter alia, to recover damages for dental malpractice, the plaintiffappeals, as limited by his notice of appeal and brief, from so much of an order of theSupreme Court, Nassau County (Murphy, J.), dated August 24, 2011, as granted thosebranches of the motion of the defendant Sultan Salem, and those branches of the separatemotion of the defendants Eric Weinstein and Island Dental Associates, LLC, which werefor summary judgment dismissing the first and second causes of action insofar asasserted against each of them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting that branch of the motion of the defendant Sultan Salem which was forsummary judgment dismissing the first cause of action insofar as asserted against him,and substituting therefor a provision denying that branch of the motion, and (2) bydeleting the provision thereof granting that branch of the motion of the defendants EricWeinstein and Island Dental Associates, PLLC, which was for summary judgmentdismissing the first cause of action insofar as asserted against the defendant Island DentalAssociates, PLLC, and substituting therefor a provision denying that branch of themotion; as so modified, the order is affirmed insofar as appealed from, with one bill ofcosts to the plaintiff, payable by the defendants Sultan Salem and Island DentalAssociates, PLLC, appearing separately and filing separate briefs.
In January 2009, the plaintiff commenced this action, inter alia, to recover damagesfor dental malpractice and lack of informed consent against, among others, thedefendants Sultan Salem, Eric Weinstein, and Island Dental Associates, PLLC(hereinafter Island Dental). The plaintiff alleges that Salem was negligent inrecommending and implementing a denture treatment plan that involved the installationof implants in the upper portion of the plaintiff's mouth, when the plaintiff lackedsufficient bone in his jaw to support the implants, leading to their failure, and that thedefendants Weinstein and Island Dental are vicariously liable for Salem's negligent acts.
Salem moved for summary judgment dismissing, inter alia, the dental malpractice[*2]cause of action insofar as asserted against him on theground that the plaintiff's claims against him were time-barred pursuant to CPLR 214-a,or, alternatively, pursuant to CPLR 3212 on the ground that he did not commitmalpractice. Weinstein and Island Dental separately moved for summary judgmentdismissing, among other things, the dental malpractice cause of action insofar as assertedagainst each of them on the grounds that Weinstein did not treat the plaintiff until afterthe alleged malpractice had occurred and that neither Weinstein nor Island Dental couldbe vicariously liable for the acts of Salem, who was an independent contractor at IslandDental. The Supreme Court, inter alia, granted those branches of the defendants'respective motions which were for summary judgment dismissing the dental malpracticecause of action insofar as asserted against each of them.
Salem established his prima facie entitlement to judgment as a matter of lawdismissing the dental malpractice cause of action insofar as asserted against him astime-barred, inasmuch as his treatment of the plaintiff had ended on January 14, 2006,more than 2½ years before the action was commenced (see CPLR 214-a;Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden then shifted tothe plaintiff to raise a triable issue of fact as to whether the continuous treatment doctrinetolled the statute of limitations (see CPLR 214-a; Gomez v Katz, 61 AD3d108, 113 [2009]; Zito vJastremski, 58 AD3d 724, 725 [2009]).
Contrary to the Supreme Court's determination, the plaintiff raised a triable issue offact as to whether the services rendered by Weinstein represent continuous treatmentwithin the meaning of CPLR 214-a, so as to toll the statute of limitations as to Salem(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Theplaintiff presented evidence demonstrating that he was a patient of Island Dental ratherthan of Salem individually (seeScalcione v Winthrop Univ. Hosp., 53 AD3d 605, 608 [2008]; Cardenales v Queens-Long Is.Med. Group, P.C., 18 AD3d 689, 690 [2005]). Indeed, the plaintiff establishedthat Weinstein, who was the sole shareholder in Island Dental, considered the plaintiff tobe a patient of Island Dental. After the plaintiff declared his mistrust of Salem, Weinsteincontinued to treat the plaintiff for an overdenture and to discuss possible permanenttreatment options with him. Under these circumstances, there are questions of fact as towhether there existed a relationship between Salem, and Weinstein and Island Dental,such that the continued treatment of the plaintiff by Weinstein may serve as a basis fortolling the statute of limitations as to Salem (see McDermott v Torre, 56 NY2d399, 406 [1982]; Mule vPeloro, 60 AD3d 649, 650 [2009]; Scalcione v Winthrop Univ. Hosp.,53 AD3d at 608; Cardenales v Queens-Long Is. Med. Group, P.C., 18 AD3d at690; Solomonik v Elahi, 282 AD2d 734, 735 [2001]; Kimiatek v Post,240 AD2d 372, 373 [1997]; Watkins v Fromm, 108 AD2d 233, 239-244 [1985]).
Furthermore, although Salem met his prima facie burden of establishing that he didnot depart from good and accepted practice (see Koi Hou Chan v Yeung, 66 AD3d 642, 642-643[2009]; Myers v Ferrara, 56AD3d 78, 83 [2008]; Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Terranova v Finklea, 45 AD3d572 [2007]), the plaintiff raised a triable issue of fact as to whether he departed fromgood and accepted practice by recommending and implementing a contraindicatedtreatment plan.
Also contrary to the Supreme Court's determination, Island Dental failed to make aprima facie showing that it was not vicariously liable for any possible malpracticecommitted by Salem (seeSampson v Contillo, 55 AD3d 588, 590 [2008]; Keitel v Kurtz, 54 AD3d387, 390 [2008]; Ryan v New York City Health & Hosps. Corp., 220 AD2d734, 736 [1995]).
The Supreme Court properly granted that branch of the motion of Weinstein andIsland Dental which was for summary judgment dismissing the dental malpractice causeof action insofar as asserted against Weinstein. Contrary to the plaintiff's contention,Weinstein cannot be held vicariously liable for acts performed solely by Salem based onhis status as the sole shareholder of Island Dental, a limited liability company. Ashareholder, employee, or officer of a limited liability company is liable only fornegligent or wrongful acts "committed by him or her or by any person under his or herdirect supervision and control while rendering professional services in his or her capacityas a member, manager, employee or agent of such professional service limited liabilitycompany" (Limited Liability Company Law § 1205 [b]; cf. Hill v St. Clare'sHosp., 67 NY2d 72, 79 [1986]; We're Assoc. Co. v Cohen, Stracher &Bloom, 65 NY2d 148, 151 [1985]; Moller v Taliuaga, 255 AD2d 563, 564[1998]; Ecker v Zwaik & Bernstein, 240 AD2d 360, 361 [1997]).[*3]
The plaintiff's remaining contention with respectto the lack of informed consent cause of action is without merit. Dillon, J.P., Chambers,Sgroi and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op 32390(U).]