        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

996
CA 12-01911
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF SMALL SMILES LITIGATION
------------------------------------------------
KELLY VARANO, AS PARENT AND NATURAL GUARDIAN
OF INFANT JEREMY BOHN, SHANNON FROIO, AS
PARENT AND NATURAL GUARDIAN OF INFANT SHAWN
DARLING, BRENDA FORTINO, AS PARENT AND
NATURAL GUARDIAN OF INFANT JULIE FORTINO,
MARIE MARTIN, AS PARENT AND NATURAL GUARDIAN
OF INFANT KENNETH KENYON, JENNY LYNN COWHER,
AS PARENT AND NATURAL GUARDIAN OF INFANT
WILLIAM MARTIN, HOLLAN CRIPPEN, AS PARENT AND
NATURAL GUARDIAN OF INFANT DEVAN MATHEWS,
JESSICA RECORE, AS PARENT AND NATURAL GUARDIAN
OF INFANT SAMANTHA MCLOUGHLIN, LAURIE RIZZO
AND DOMINICK RIZZO, AS LEGAL CUSTODIANS OF
INFANT JACOB MCMAHON, JASON MONTANYE, AS
PARENT AND NATURAL GUARDIAN OF INFANT KADEM
MONTANYE AND FRANCES SHELLINGS, AS PARENT AND
NATURAL GUARDIAN OF INFANT RAYNE SHELLINGS,
PLAINTIFFS-RESPONDENTS,
                                                   MEMORANDUM AND ORDER
                    V

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET
HEALTH MANAGEMENT, LLC, FORBA NY, LLC,
FORBA, LLC, NOW KNOWN AS LICSAC LLC, FORBA
NY, LLC, NOW KNOWN AS LICSAC NY, LLC, DD
MARKETING, INC., DEROSE MANAGEMENT, LLC, SMALL
SMILES DENTISTRY OF SYRACUSE, LLC, DANIEL E.
DEROSE, MICHAEL A. DEROSE, D.D.S., EDWARD J.
DEROSE, D.D.S., ADOLPH R. PADULA, D.D.S.,
WILLIAM A. MUELLER, D.D.S., MICHAEL W. ROUMPH,
NAVEED AMAN, D.D.S., KOURY BONDS, D.D.S., TAREK
ELSAFTY, D.D.S., YAQOOB KHAN, D.D.S., JANINE
RANDAZZO, D.D.S., LOC VINH VUU, D.D.S.,
DEFENDANTS-APPELLANTS;
ET AL., DEFENDANTS.
(ACTION NO. 1.)
----------------------------------------------------
SHANTEL JOHNSON, AS PARENT AND NATURAL GUARDIAN OF
INFANT KEVIN BUTLER, VERONICA ROBINSON, AS PARENT
AND NATURAL GUARDIAN OF INFANT ARIANA FLORES, DEMITA
GARRETT, AS PARENT AND NATURAL GUARDIAN OF INFANT
I’YANA GARCIA SANTOS, KATHRYN JUSTICE, AS PARENT AND
NATURAL GUARDIAN OF INFANT BREYONNA HOWARD, ELIZABETH
LORRAINE, AS PARENT AND NATURAL GUARDIAN OF INFANT
SHILOH LORRAINE, JR., LAPORSHA SHAW, AS PARENT AND
                                 -2-                             996
                                                           CA 12-01911

NATURAL GUARDIAN OF INFANT ALEXIS PARKER, ROBERT
RALSTON, AS PARENT AND NATURAL GUARDIAN OF INFANT
BRANDIE RALSTON, KATRICE MARSHALL, AS PARENT AND
NATURAL GUARDIAN OF INFANT LESANA ROSS, TIFFANY
HENTON, AS PARENT AND NATURAL GUARDIAN OF INFANT
COREY SMITH AND JANET TABER, AS PARENT AND NATURAL
GUARDIAN OF INFANT JON TABER,
PLAINTIFFS-RESPONDENTS,

                    V

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET
HEALTH MANAGEMENT, LLC, FORBA NY, LLC, FORBA, LLC,
NOW KNOWN AS LICSAC, LLC, FORBA NY, LLC, NOW KNOWN
AS LICSAC NY LLC, DD MARKETING, INC., DEROSE
MANAGEMENT, LLC, SMALL SMILES DENTISTRY OF
ROCHESTER, LLC, DANIEL E. DEROSE, MICHAEL A.
DEROSE, D.D.S., EDWARD J. DEROSE, D.D.S., ADOLPH R.
PADULA, D.D.S., WILLIAM A. MUELLER, D.D.S., MICHAEL W.
ROUMPH, SHILPA AGADI, D.D.S., KOURY BONDS, D.D.S.,
ISMATU KAMARA, D.D.S., KEIVAN ZOUFAN, D.D.S.,
SONNY KHANNA, D.D.S., KIM PHAM, D.D.S., LAWANA
FUQUAY, D.D.S., DEFENDANTS-APPELLANTS;
ET AL., DEFENDANTS.
(ACTION NO. 2.)
----------------------------------------------------
TIMOTHY ANGUS, AS PARENT AND NATURAL GUARDIAN OF
INFANT JACOB ANGUS, JESSALYN PURCELL, AS PARENT AND
NATURAL GUARDIAN OF INFANT ISAIAH BERG, BRIAN CARTER,
AS PARENT AND NATURAL GUARDIAN OF INFANT BRIANA
CARTER, APRIL FERGUSON, AS PARENT AND NATURAL GUARDIAN
OF INFANT JOSEPH FERGUSON, SHERAIN RIVERA, AS PARENT
AND NATURAL GUARDIAN OF INFANT SHADAYA GILMORE, TONYA
POTTER, AS PARENT AND NATURAL GUARDIAN OF INFANT
DESIRAEE HAGER, NANCY WARD, AS LEGAL CUSTODIAN OF INFANT
AALYIAROSE LABOMBARD-BLACK, NANCY WARD, AS LEGAL
CUSTODIAN OF INFANT MANUEL LABORDE, JR., JENNIFER
BACON, AS PARENT AND NATURAL GUARDIAN OF INFANT ASHLEY
PARKER AND COURTNEY CONRAD, AS PARENT AND NATURAL
GUARDIAN OF INFANT ZAKARY WILSON,
PLAINTIFFS-RESPONDENTS,

                    V

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET
HEALTH MANAGEMENT, LLC, FORBA NY, LLC, FORBA, LLC,
NOW KNOWN AS LICSAC, LLC, FORBA NY, LLC, NOW KNOWN
AS LICSAC NY LLC, DD MARKETING, INC., DEROSE
MANAGEMENT, LLC, SMALL SMILES DENTISTRY OF ALBANY, LLC,
ALBANY ACCESS DENTISTRY, PLLC, DANIEL E. DEROSE,
MICHAEL A. DEROSE, D.D.S., EDWARD J. DEROSE, D.D.S.,
ADOLPH R. PADULA, D.D.S., WILLIAM A. MUELLER, D.D.S.,
MICHAEL W. ROUMPH, MAZIAR IZADI, D.D.S., JUDITH MORI,
D.D.S., LISSETTE BERNAL, D.D.S., EDMISE FORESTAL,
                                   -3-                          996
                                                          CA 12-01911

D.D.S.,   EVAN GOLDSTEIN, D.D.S., KEERTHI GOLLA,
D.D.S.,   NASSEF LANCEN, D.D.S., DEFENDANTS-APPELLANTS;
ET AL.,   DEFENDANTS.
(ACTION   NO. 3.)


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KEVIN E. HULSLANDER
OF COUNSEL), FOR DEFENDANTS-APPELLANTS FORBA HOLDINGS, LLC, NOW KNOWN
AS CHURCH STREET HEALTH MANAGEMENT, LLC, FORBA NY, LLC, SMALL SMILES
DENTISTRY OF ALBANY, LLC, ALBANY ACCESS DENTISTRY, PLLC, SMALL SMILES
DENTISTRY OF ROCHESTER, LLC AND SMALL SMILES DENTISTRY OF SYRACUSE,
LLC.

O’CONNOR, O’CONNOR, BRESEE & FIRST, P.C., ALBANY (DANIELLE N. MEYERS
OF COUNSEL), FOR DEFENDANTS-APPELLANTS FORBA, LLC, NOW KNOWN AS
LICSAC, LLC, FORBA NY, LLC, NOW KNOWN AS LICSAC NY LLC, DD MARKETING,
INC., DEROSE MANAGEMENT, LLC, DANIEL E. DEROSE, MICHAEL A. DEROSE,
D.D.S., EDWARD J. DEROSE, D.D.S., ADOLPH R. PADULA, D.D.S., WILLIAM A.
MUELLER, D.D.S. AND MICHAEL W. ROUMPH.

WILSON ELSER MOZKOWITZ EDELMAN & DICKER LLP, ALBANY (MELISSA A.
MURPHY-PETROS OF COUNSEL), FOR DEFENDANTS-APPELLANTS MAZIAR IZADI,
D.D.S., JUDITH MORI, D.D.S., EDMISE FORESTAL, D.D.S., EVAN GOLDSTEIN,
D.D.S., KEERTHI GOLLA, D.D.S., NASSEF LANCEN, D.D.S., NAVEED AMAN,
D.D.S., TAREK ELSAFTY, D.D.S., YAQOOB KHAN, D.D.S., SHILPA AGADI,
D.D.S., KOURY BONDS, D.D.S., KIM PHAM, D.D.S., ISMATU KAMARA, D.D.S.
AND SONNY KHANNA, D.D.S.

HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS KEIVAN ZOUFAN, D.D.S., LAWANA FUQUAY, D.D.S.,
LOC VINH VUU, D.D.S., JANINE RANDAZZO, D.D.S. AND LISSETTE BERNAL,
D.D.S.

POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered October 4, 2012. The order, inter alia,
denied the motions of defendants-appellants to dismiss certain causes
of action in the amended complaints.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motions in part and
dismissing the first and third causes of action of the amended
complaints against defendants-appellants and dismissing the fourth
cause of action of the amended complaints insofar as it alleges a
violation of General Business Law § 350 against the individual
defendants-appellants with the exception of Daniel E. DeRose, Michael
A. DeRose, D.D.S., Edward J. DeRose, D.D.S., Adolph R. Padula, D.D.S.,
William A. Mueller, D.D.S., and Michael W. Roumph, and as modified the
order is affirmed without costs.

     Memorandum:   These three actions were commenced by various
                                 -4-                           996
                                                         CA 12-01911

plaintiffs asserting causes of action for fraud, battery, breach of
fiduciary duty, breach of General Business Law §§ 349 and 350,
malpractice, negligence, and failure to obtain informed consent based
on dental treatment provided to the subject children. These actions
have been coordinated for purposes of discovery pursuant to 22 NYCRR
202.69 in Onondaga County Supreme Court. Defendants-appellants moved
to dismiss certain causes of action in the amended complaints, which
the court denied in their entirety. On this consolidated appeal,
there are four groups of defendants-appellants: Forba, LLC, now known
as LICSAC, LLC, et al. (Old FORBA); Forba Holdings, LLC, now known as
Church Street Health Management, LLC, et al. (New FORBA); Keivan
Zoufan, D.D.S., et al. (Five Dentists); and Maziar Izadi, D.D.S., et
al. (Fourteen Dentists) (collectively, defendants).

     We agree with defendants that the court erred in denying those
parts of their respective motions seeking dismissal of the fraud and
breach of fiduciary duty causes of action, and we therefore modify the
order by dismissing the first and third causes of action of the
amended complaints against defendants. “Dismissal of a fraud cause of
action is required ‘[w]here [it] gives rise to damages which are not
separate and distinct from those flowing from an alleged [dental]
malpractice cause of action’ ” (Abraham v Kosinski, 251 AD2d 967, 967-
968; see Giannetto v Knee, 82 AD3d 1043, 1045; Haga v Pyke, 19 AD3d
1053, 1055). Inasmuch as the damages sought by plaintiffs, including
punitive damages, are the same for the fraud and dental malpractice
causes of action, we conclude that the fraud cause of action must be
dismissed. We further conclude that the breach of fiduciary duty
cause of action must be dismissed because it is duplicative of the
malpractice cause of action (see Padilla v Verczky-Porter, 66 AD3d
1481, 1484; see generally Adamski v Lama, 56 AD3d 1071, 1072-1073;
Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc.,
10 AD3d 267, 271). Both the breach of fiduciary duty cause of action
and dental malpractice cause of action are based on the same facts and
seek identical relief (cf. Ulico Cas. Co. v Wilson, Elser, Moskowitz,
Edelman & Dicker, 56 AD3d 1, 9).

     We reject the contention of the Fourteen Dentists that the
General Business Law § 349 claim is duplicative of other causes of
action in the amended complaints (see generally Gaidon v Guardian Life
Ins. Co. of Am., 94 NY2d 330, 343-344; Karlin v IVF Am., 93 NY2d 282,
290-294, rearg denied 93 NY2d 989), and we also reject the contention
of the Five Dentists and the Fourteen Dentists that plaintiffs failed
to state a cause of action with respect to the General Business Law §
349 claim (see generally Stutman v Chemical Bank, 95 NY2d 24, 29;
Gaidon, 94 NY2d at 344). Plaintiffs alleged a scheme whereby the
individual dentists made fraudulent misrepresentations to parents and
custodians to induce consent for dental procedures, resulting in harm
to the subject children. With respect to the General Business Law §
350 claim, however, we agree with the Five Dentists and the Fourteen
Dentists that the claim should be dismissed against them, and we
therefore further modify the order accordingly. Section 350 prohibits
“[f]alse advertising in the conduct of any business, trade or commerce
or in the furnishing of any service . . .” Inasmuch as the amended
complaints do not allege that those individual dentists were involved
                                 -5-                           996
                                                         CA 12-01911

in any false advertising, that claim must be dismissed against them.

     We reject the contention of Old FORBA, New FORBA, and the Five
Dentists that the battery cause of action should be dismissed. A
battery cause of action may be maintained where the allegation is that
the dental professional did not obtain consent for the procedure or
treatment (see VanBrocklen v Erie County Med. Ctr., 96 AD3d 1394,
1394). Here, plaintiffs alleged that consent was obtained by fraud,
which is the equivalent of no consent at all (see generally Darrah v
Kite, 32 AD2d 208, 210-211).

     We have considered the remaining contentions raised by the
parties and conclude that they are without merit.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
