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

40
CA 14-01086
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF SMALL SMILES LITIGATION
---------------------------------------------
TIMOTHY ANGUS, AS PARENT AND NATURAL GUARDIAN
OF INFANT JACOB ANGUS, ET AL., PLAINTIFFS,
AND SHERAIN RIVERA, AS PARENT AND NATURAL
GUARDIAN OF INFANT SHADAYA GILMORE,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET
HEALTH MANAGEMENT, LLC, FORBA NY, LLC, SMALL
SMILES DENTISTRY OF ALBANY, LLC, MAZIAR IZADI, D.D.S.,
NASSEF LANCEN, D.D.S., ALBANY ACCESS DENTISTRY, PLLC,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET
HEALTH MANAGEMENT, LLC, FORBA NY, LLC, SMALL SMILES DENTISTRY OF
ALBANY AND ALBANY ACCESS DENTISTRY, PLLC.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, ALBANY (MELISSA A.
MURPHY-PETROS OF COUNSEL), FOR DEFENDANTS-APPELLANTS MAZIAR IZADI,
D.D.S. AND NASSEF LANCEN, D.D.S..

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


     Appeals from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered September 17, 2013. The order,
insofar as appealed from, denied in part the summary judgment motions
of defendants-appellants.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Sherain Rivera (plaintiff), among other plaintiffs,
commenced this action seeking damages for injuries sustained by her
infant daughter as a result of, inter alia, allegedly unnecessary
dental treatment performed at a “Small Smiles” dental clinic in
Albany, New York, without informed consent or with fraudulently
obtained consent. This action was coordinated for purposes of
discovery and dispositive motions with two other actions in Supreme
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                                                         CA 14-01086

Court, Onondaga County. Although there are four groups of defendants
involved in the three coordinated actions (Matter of Small Smiles
Litig., 109 AD3d 1212, 1212-1213), the only group relevant to the
instant appeal is that comprised of the corporate defendants-
appellants (collectively, New FORBA defendants) and the two individual
defendants-appellants, the dentists who provided treatment to
plaintiff’s infant daughter at the Albany clinic location. Supreme
Court denied in part the motion of the New FORBA defendants for
partial summary judgment as well as the motions of the two dentists
for summary judgment dismissing the amended complaint against them.

     The New FORBA defendants contend on appeal that the court erred
in denying those parts of their motion with respect to the causes of
action for battery, the violation of General Business Law § 349,
negligence, and concerted action, and erred in refusing to strike
plaintiff’s demand for punitive damages. The individual dentists,
Maziar Izadi, D.D.S., and Nassef Lancen, D.D.S., each contend on
appeal that the court erred in refusing to dismiss the amended
complaint against them.

     Contrary to the contention of the New FORBA defendants, the cause
of action asserting the complete absence of consent and/or
fraudulently induced consent for treatment is properly treated as one
for battery rather than for dental malpractice, and is not duplicative
of the dental malpractice cause of action (see Small Smiles Litig.,
109 AD3d at 1214; VanBrocklen v Erie County Med. Ctr., 96 AD3d 1394,
1394). It is well settled that a medical professional may be deemed
to have committed battery, rather than malpractice, if he or she
carries out a procedure or treatment to which the patient has provided
“ ‘no consent at all’ ” (VanBrocklen, 96 AD3d at 1394; see Wiesenthal
v Weinberg, 17 AD3d 270, 270-271). The court properly denied that
part of the New FORBA defendants’ motion with respect to the battery
cause of action, inasmuch as they failed to meet their initial burden
of establishing that they “did not intentionally engage in offensive
bodily contact without plaintiff’s consent” (Guntlow v Barbera, 76
AD3d 760, 766, appeal dismissed 15 NY3d 906).

     We reject the contention of the New FORBA defendants that the
court erred in denying that part of their motion with respect to the
cause of action under General Business Law § 349. A cause of action
for deceptive business practices under section 349 “requires proof
that the defendant engaged in consumer-oriented conduct that was
materially deceptive or misleading, causing injury” (Corcino v
Filstein, 32 AD3d 201, 201). Even assuming, arguendo, that the New
FORBA defendants met their initial burden by establishing that the
underlying transaction was private in nature and the allegedly
deceptive acts were not aimed at the public at large (see generally
Confidential Lending, LLC v Nurse, 120 AD3d 739, 741), we conclude
that plaintiff’s submissions raised issues of fact concerning whether
the New FORBA defendants engaged in a scheme to place profits before
patient care, which allegedly included fraudulent practices that
impacted consumers at large beyond a particular dentist’s treatment of
an individual patient (see Morgan Servs. v Episcopal Church Home &
Affiliates Life Care Community, 305 AD2d 1105, 1106; see generally
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                                                         CA 14-01086

Zuckerman v City of New York, 49 NY2d 557, 562).

     We likewise reject the contention of the New FORBA defendants
that the court erred in refusing to dismiss the negligence cause of
action, which was based in part upon an alleged violation of Limited
Liability Company Law § 1203, because any violation of that section
was not a proximate cause of injury to plaintiff’s daughter. Even
assuming, arguendo, that the New FORBA defendants met their initial
burden of establishing as a matter of law that they are not liable
under that statute, we conclude that there are issues of fact whether
they violated that statute, whether that violation was part of an
overall scheme to place the maximizing of profits over the quality of
patient care, and whether any of the injuries sustained by plaintiff’s
daughter were caused thereby (see generally Derdiarian v Felix Contr.
Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784).

     We reject the further contention of the New FORBA defendants that
the court erred in refusing to strike the demand for punitive damages
(see Garber v Lynn, 79 AD3d 401, 402-403). To the extent that those
defendants contend that a stipulation in bankruptcy court to limit
collection of any money judgment obtained by plaintiff to insurance
proceeds precludes a claim for punitive damages, we conclude that such
contention does not serve as a basis for affirmative relief at this
juncture.

     Contrary to the contention of the individual dentists, the court
properly refused to dismiss the amended complaint against them on the
ground that plaintiff’s daughter was not injured during the treatment
and sustained no compensable damages thereby. Even assuming,
arguendo, that they met their initial burden of establishing that
plaintiff’s daughter was not injured by the treatment they performed
(see generally Shahid v New York City Health & Hosps. Corp., 47 AD3d
800, 801), we conclude that plaintiff raised a triable issue of fact
whether her daughter sustained injuries as a result of such treatment
(see generally Zuckerman, 49 NY2d at 562).

     Lastly, in light of our determination with respect to the motions
of the individual dentists, we reject the contention of the New FORBA
defendants that there is no independent tort to support plaintiff’s
cause of action for concerted action liability (see generally Rastelli
v Goodyear Tire & Rubber Co., 79 NY2d 289, 295; cf. Brenner v American
Cyanamid Co., 288 AD2d 869, 870).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
