| Chan v Toothsavers Dental Care, Inc. |
| 2015 NY Slip Op 01236 [125 AD3d 712] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Ruby Chan, Respondent, v Toothsavers DentalCare, Inc., et al., Defendants, and Sol Stolzenberg, D.D.S., Doing Business asToothsavers, et al., Appellants. |
Gordon & Silber, P.C., New York, N.Y. (Eldar Mayouhas and Andrew B.Kaufman of counsel), for appellants Sol Stolzenberg, doing business as Toothsavers, andSol Stolzenberg, individually.
Kolenovsky Spiegel LLP, New York, N.Y. (James Modzelewski of counsel), forappellant Jonathan Weiss.
Caruso Glynn, LLC, Fresh Meadows, N.Y. (Lawrence C. Glynn of counsel), forrespondent.
In an action, inter alia, to recover damages for dental malpractice and lack ofinformed consent, the defendant Jonathan Weiss appeals, as limited by his brief and astipulation dated December 8, 2014, from so much of an order of the Supreme Court,Kings County (Bunyan, J.), dated September 19, 2012, as denied that branch of hismotion which was for summary judgment dismissing so much of the complaint as soughtto recover damages for dental malpractice insofar as asserted against him, and thedefendants Sol Stolzenberg, doing business as Toothsavers, and Sol Stolzenberg,individually, separately appeal, as limited by their notice of appeal and brief, from somuch of the same order as denied that branch of their motion which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant SolStolzenberg, doing business as Toothsavers.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable by the appellants appearing separately and filing separate briefs.
The plaintiff commenced this action against, among others, the defendant JonathanWeiss and his alleged employer, the defendant Sol Stolzenberg, doing business asToothsavers (hereinafter Toothsavers), alleging, inter alia, that Weiss committed dentalmalpractice by inserting a temporary bridge, and by improperly grinding down her lowerteeth to do so, and that he failed to obtain her informed consent for the procedure.Toothsavers and Stolzenberg (hereinafter together the Toothsavers defendants) moved,and Weiss separately moved, for summary judgment dismissing the complaint insofar asasserted against each of them, and the Supreme Court denied the motions.
The Toothsavers defendants contend that because Weiss was an independentcontractor, not an employee, they cannot be vicariously liable for Weiss's malpractice."The general rule is that a party who retains an independent contractor, as distinguishedfrom a mere employee [*2]or servant, is not liable for theindependent contractor's negligent acts" (Kleeman v Rheingold, 81 NY2d 270,273 [1993]; see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). "Thedetermination of whether an employer-employee relationship exists turns on whether thealleged employer exercises control over the results produced or, more importantly, themeans used to achieve the results" (Bravo v Vargas, 113 AD3d 579, 582 [2014]; see Bynog v Cipriani Group, 1NY3d 193, 198 [2003]; Matter of Ted Is Back Corp. [Roberts], 64 NY2d725, 726 [1984]). Here, the Toothsavers defendants failed to establish, prima facie, thatWeiss was an independent contractor and not a Toothsavers employee. Weiss'sdeposition testimony, which was submitted by the Toothsavers defendants, presented atriable issue of fact as to whether he was an employee of Toothsavers. Accordingly, theToothsavers defendants were not entitled to summary judgment dismissing the complaintinsofar as asserted against them on this ground.
"To establish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, [a] plaintiff must prove (1) that the person providing the professionaltreatment failed to disclose alternatives thereto and failed to inform the patient ofreasonably foreseeable risks associated with the treatment, and the alternatives, that areasonable medical practitioner would have disclosed in the same circumstances, (2) thata reasonably prudent patient in the same position would not have undergone thetreatment if he or she had been fully informed, and (3) that the lack of informed consentis a proximate cause of the injury" (Spano v Bertocci, 299 AD2d 335, 337-338[2002] [internal quotation marks omitted]; see Public Health Law§ 2805-d [1]; Walker v Saint Vincent Catholic Med. Ctrs., 114 AD3d669, 670 [2014]). Here, the Toothsavers defendants failed to make a prima facieshowing of entitlement to judgment as a matter of law dismissing so much of thecomplaint as sought to recover damages for lack of informed consent insofar as assertedagainst them. The deposition testimony of the plaintiff and Weiss and the generic consentform signed by the plaintiff presented triable issues of fact as to whether Weiss informedthe plaintiff about the procedure, the alternatives thereto, and the reasonably foreseeablerisks and benefits of the proposed treatment and the alternatives (see Walker v SaintVincent Catholic Med. Ctrs., 114 AD3d at 670-671; Kozlowski v Oana, 102 AD3d751, 753 [2013]; Barnett vFashakin, 85 AD3d 832, 835-836 [2011]; Rezvani v Somnay, 65 AD3d 537, 538-539 [2009]).Accordingly, the Supreme Court properly denied that branch of the motion of theToothsavers defendants which was for summary judgment dismissing so much of thecomplaint as sought to recover damages for lack of informed consent insofar as assertedagainst them.
In a dental malpractice action, the requisite elements of proof are a deviation ordeparture from accepted standards of dental practice, and that such departure was aproximate cause of the plaintiff's injuries (see Kozlowski v Oana, 102 AD3d at752; McGuigan v CentereachMgt. Group, Inc., 94 AD3d 955, 956 [2012]; Zito v Jastremski, 84 AD3d1069, 1070 [2011]). "A defendant moving for summary judgment has the initialburden of establishing that he or she did not depart from good and accepted practice, or ifthere was such a departure, that it was not a proximate cause of the plaintiff's injuries"(Kozlowski v Oana, 102 AD3d at 752-753). Here, Weiss and the Toothsaversdefendants established, prima facie, that Weiss did not depart from good and acceptedpractice by inserting a temporary bridge, and by grinding down the plaintiff's teeth to doso, as part of a treatment plan for treating the plaintiff's periodontal disease. However, inopposition, the plaintiff raised a triable issue of fact as to a departure by submitting theaffirmation of an expert, who opined that Weiss deviated from good and accepted dentalpractice in performing a procedure that was unnecessary to treat the plaintiff'speriodontal disease. Accordingly, the Supreme Court properly denied those branches ofthe respective motions of Weiss and the Toothsavers defendants which were forsummary judgment dismissing so much of the complaint as sought to recover damagesfor dental malpractice insofar as asserted against them (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Leventhal, J.P., Hall, Austin and Sgroi, JJ.,concur.