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

1200
CA 14-02173
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


YONGMI ODDO AND SALVATORE ODDO,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ALC OF WILLIAMSVILLE, LLC, AND SUCHITRA
KONERU, M.D., DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


COLUCCI & GALLAHER, P.C., BUFFALO (MARYLOU K. ROSHIA OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

STAMM LAW FIRM, WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO
(EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County
(Jeremiah J. Moriarty, III, J.), entered June 25, 2014. The judgment,
among other things, awarded plaintiff Yongmi Oddo money damages as
against defendants.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Yongmi Oddo (plaintiff) during a laser
hair removal procedure at defendant ALC of Williamsville, LLC (ALC).
At the time of the procedure, Suchitra Koneru, M.D. (defendant), was a
joint owner and vice-president of ALC, and she was employed as its
medical director. She was not present during the procedure, which was
performed by an ALC technician. In their amended complaint,
plaintiffs alleged, inter alia, negligence and medical malpractice
against defendant.

     Contrary to the contention of defendants, we conclude that
Supreme Court properly granted plaintiffs’ motion for a directed
verdict on the issue of defendant’s vicarious liability for the
negligence of the technician. The evidence at trial established that
defendant, in her capacity as medical director of ALC, was responsible
for training the technicians, specifically with respect to the
settings on the laser, and for supervising the laser procedures. The
evidence further established that plaintiff suffered serious burns
during the procedure because the setting on the laser was not
appropriate for her. The court properly concluded that “there was no
rational process by which the fact trier could base a finding in favor
                                 -2-                          1200
                                                         CA 14-02173

of [defendant]” on the issue of defendant’s vicarious liability (West
v Hogan, 88 AD3d 1247, 1248, affd 19 NY3d 1073 [internal quotation
marks omitted]). “In [her] capacity of employee and supervisor,
[defendant was] subject to liability for the acts of a fellow employee
where, under the circumstances, there [was] an unreasonable risk of
physical harm to others” (Yaniv v Taub, 256 AD2d 273, 274-275
[internal quotation marks omitted]).

     Defendants’ further contention that plaintiffs failed to plead a
theory of vicarious liability against defendant is belied by the
record on appeal. “A complaint is deemed to allege whatever can be
implied from its statements by fair and reasonable intendment” and,
here, the amended complaint may be fairly interpreted to allege a
theory of vicarious liability against defendant (Tuffley v City of
Syracuse, 82 AD2d 110, 113). “Moreover, a court will look to the bill
of particulars when determining the sufficiency of a complaint,” and
plaintiffs’ bill of particulars expressly states that plaintiffs’
allegations against defendant include a theory of vicarious liability
(id.).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
