Opinion
Index No. 158508/2016
07-29-2022
MICHAEL MCCABE, Plaintiff v. CENTRAL PARK AESTHETIC & LASER, YUSUF MAMDANI, ZAHRA MAMDANI, ERSZEBETH AZAROWICZ, and Y. MAMDANI, M.D., P.C., Defendants
For Plaintiff Thomas H. Hanna, Jr., Esq. For Defendants Belinda Dodds-Marshall Esq. and Michael R. Janes Esq. Kaufman, Borgeest &Ryan, LLP
Unpublished Opinion
For Plaintiff Thomas H. Hanna, Jr., Esq.
For Defendants Belinda Dodds-Marshall Esq. and Michael R. Janes Esq. Kaufman, Borgeest &Ryan, LLP
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Plaintiff received laser hair removal treatments at defendant Y. Mamadani, M.D., P.C., which conducted business under the name Central Park Aesthetic &Laser. He alleges that its technician burned his face, scarring him, when she negligently performed a laser procedure to remove hair from his face and forehead October 17, 2013. He claims negligence by Central Park Aesthetic, its owner Yusuf Mamdani, M.D., and his daughter Zahra Mamdani, whom plaintiff alleges is a shareholder or partner in Central Park Aesthetic. Plaintiff also sues the Central Park Aesthetic employee, Erszebeth Azarowicz, who administered his hair removal treatment October 17, 2013.
All defendants except Azarowicz move together for summary judgment dismissing the action based on plaintiff's failure to establish a negligence claim against any defendant. C.P.L.R. § 3212(b). To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence, eliminating all material factual issues. Id.; Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp, v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N-. Y. 3d. 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). If defendants fail to make that evidentiary showing, the court must deny their motion. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; William J. Jenack Estate Appraisers &Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Dorador v. Trump Palace Condo., 190 A.D.3d 479, 481 (1st Dep't 2021). Only if defendants meet their initial burden, does the burden shift to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp, v, Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at. 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). For the reasons explained below, the court grants defendants' motion for summary judgment in part. C.P.L.R. § 3212(b) and (e).
I. DEFENDANT ERSZEBETH AZAROWICZ
Moving defendants point out that the technician, defendant Azarowicz, never answered, because plaintiff never served her with his summons and complaint. Therefore the other defendants, in their reply, ask the court to dismiss the action against her as abandoned. When plaintiff has not served a defendant within 120 days after commencing the action, the court must dismiss the action against that defendant, unless plaintiff shows grounds to extend the time for service, but the dismissal may be only upon a motion. C.P.L.R. § 306-b. Therefore, absent a motion, dismissal of Azarowicz is premature.
II. DEFENDANT ZAHRA MAMDANI
Plaintiff does not dispute defendants' showing that Zahra Mamdani neither performed nor supervised his treatment at Central Park Aesthetic. He alleges no facts and presents no evidence to support a claim that she personally committed any negligent act or omission.
Plaintiff simply insists, without legal authority, that Zahra Mamdani is liable as a manager of Central Park Aesthetic. To the extent plaintiff alleges that defendants negligently trained or supervised the technician Azarowicz, he presents no evidence that Azarowicz acted outside the scope of her employment, a failure fatal to a claim for negligent training or supervision. Berkowitz v. Equinox One Park Ave., Inc., 181 A.D.3d 436, 437 (1st Dep't 2020); Marshall v. Darrick E. Antell, MD, P.C., 147 A.D.3d 478, 479 (1st Dep't 2017). Another essential element of that claim is that the supervisor received actual or constructive notice of the employee's propensity for the type of conduct that caused plaintiff's injury: knowledge that plaintiff nowhere alleges. Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 472 (1st Dep't 2020); Sheila C. v. Povich, 11 A.D.3d 120, 129 (1st Dep't 2004).
If Azarowicz acted within the scope of her employment, her employer may be liable for her negligence under a respondeat superior theory. MacKenzie v. Victor, 200 A.D.3d 529, 531 (1st Dep't 2021); Zhang v. City of New York, 198 A.D.3d 504, 505 (1st Dep't 2021); Karoon v. New York City Tr, Auth., 241 A.D.2d 323, 324 (1st Dep't 1997). Plaintiff presents no evidence, however, contradicting defendants' showing that Zahra Mamdani is not a physician and thus may not, nor does she, own any interest in Y. Mamdani, M.D., P.C. N.Y. Bus. Corp. Law § 1507. As Zahra Mamdani is not the technician's employer, liability does not attach to her under respondeat superior either, so she is not vicariously liable for any negligence by the technician. Burgdoerfer v. CLK/HP 90 Merrick LLC, 170 A.D.3d 427, 428 (1st Dep't 2019) . Therefore the court grants summary judgment dismissing the claims against Zahra Mamdani. C.P.L.R. § 3212(b).
III. DEFENDANT YOUSEF MAMDANI
The parties do not dispute that defendant Yousef Mamdani owned Y. Mamdani, M.D., P.C., conducting business as Central Park Aesthetic &Laser, which performed the services at issue. When defendants previously moved to dismiss this action on the grounds that it claimed medical malpractice and was untimely under the statute of limitations for medical malpractice, C.P.L.R. §§ 214-a, 3211(a)(5), Dr. Mamdani attested that he directed, supervised, and controlled the laser hair removal services that Azarowicz provided to plaintiff October 17, 2013. Decision &Order, NYSCEF Doc. No. 38, at 3, 7 (filed Oct. 26, 2017). As set forth above, plaintiff claims that defendants, including Dr. Mamdani, negligently directed and supervised Azarowicz, but presents no evidence that she acted outside the scope of her employment, Berkowitz v. Equinox One Park Ave., Inc., 181 A.D.3d at 437; Marshall v. Darrick E. Antell, MD, P.C., 147 A.D.3d at 479, or that Dr. Mamdani is charged with notice of her propensity for the type of conduct that caused plaintiff's injury, Norris v. Innovative Health Sys., Inc., 184 A.D.3d at 472; Sheila C. v. Povich, 11 A.D.3d at 129, to sustain such a claim.
Although plaintiff claims Dr. Mamdani's negligent direction and supervision, plaintiff again alleges no facts and presents no evidence to support a claim that Yusef Mamdani personally committed any act or omission that would constitute negligence on his part. Plaintiff simply claims that Dr. Mamdani is liable for his employee's negligence, under a respondeat superior theory that would apply to her conduct within the scope of her employment, if Dr. Mamdani were her employer. MacKenzie v. Victor, 200 A.D.3d at 531; Zhang v. City of New York, 198 A.D.3d at 505; Karoon v. New York City Tr, Auth., 241 A.D.2d at 324. As he was only the technician's supervisor and not her employer any more than his daughter was, neither is he vicariously liable for any negligence by the technician. Nor has plaintiff presented any evidence that would support piercing the corporate veil between Yusef Mamdani and Y. Mamdani, M.D., P.C. Therefore, for the same reasons the court grants summary judgment dismissing the claims against Zahra Mamdani, the court also grants summary judgment dismissing the claims against Yusef Mamdani. C.P.L.R. § 3212(b).
IV. DEFENDANT Y. MAMDANI, M.D., P.C.
Central Park Aesthetic & Laser, named a defendant, is not a suable business entity, but is only a name under which Y. Mamdani, M.D., P.C., conducted business. According to Zahra Mamdani, the daughter of Dr. Mamdani, who deferred to her on the question, Central Park Aesthetic &Laser was the alternate name of Dr. Mamdani's medical corporation, Y. Mamdani, M.D., P.C., the true entity defendant in this action. Aff. of Michael R. Janes Ex. I (Z. Mamdani Dep.), NYSCEF Doc. No. 91, at 16; Aff. of Zahra Mamdani, NYSCEF Doc. No. 82, ¶ 9; Janes Aff. Ex. H (Y. Mamdani Dep.), NYSCEF Doc. No. 90, at 14-15 (Dr. Mamdani deferring to his daughter) . Therefore the court grants summary judgment dismissing the claims against Central Park Aesthetic &Laser. C.P.L.R. § 3212(b) .
Defendants maintain that, once the court has dismissed the action against Azarowicz, no claims remain against the other defendants, as those claims hinge on her negligence, so without a valid claim against her, the claims against the other defendants fail. Ordinarily the court would not consider this ground for dismissal as defendants raise it only in reply, denying plaintiff an opportunity to respond,. Glencore Ltd. v. Freepoint Commodities LLC, 198 A.D.3d 413, 414 (1st Dep't 2021), but plaintiff in any event sustains a claim of negligence against the professional corporation, Y. Mamdani, M.D., P.C., known as Central Park Aesthetic &Laser, that employed Azarowicz. Although a respondeat superior claim against the employer fails without "a demonstrated entitlement to recover against its employee," "plaintiff is not obligated to sue the employee in order to obtain respondeat superior liability of the employer." Ferreira v. City of Binghamton, 975 F.3d 255, 278 (2d Cir. 2020) (citing New York law), certified question answered, __N.Y.3d__, 2022 WL 837566 (Mar. 22, 2022). See Rodriguez v. New York City Tr, Auth., 95 A.D.3d 412, 413 (1st Dep't 2012); Trivedi v. Golub, 46 A.D.3d 542, 543 (2d Dep't 2007).
To sustain a negligence claim against this entity, plaintiff must present evidence that Y. Mamdani, M.D., P.C., owed a duty to plaintiff and breached that duty, causing injury. Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, .576 (2011). Defendants do not contend that the professional corporation owed no duty of care to plaintiff. Defendants rely instead on their expert's opinion that their technician followed the standard of care for the type of hair removal procedure performed and that burns and scars are normal and accepted risks of laser hair removal and may occur without negligence, especially if the recipient has been using topical Retin-A on the skin. Aff. of Dina Anderson, M.D., NYSCEF Doc. No. 81. See Dosanjh v. Satori Laser Ctr. Corp., 127 A.D.3d 531, 532 (1st Dep't 2015). The / expert then ventures that the "responsibility to fully disclose use of medication such as Retin-A rests with the patient/patron and any complications which may develop because of the failure to make such disclosure rests with the patron/patient." Anderson Aff. ¶ 12. She does not indicate how the patron or patient would be aware of such a responsibility or whether it pertains even when no one asks him whether he uses medication. Nor does she indicate, after her review of the evidence in this action, that plaintiff was aware of a responsibility to disclose his use of medication or whether anyone at Y. Mamdani, M.D., P.C., asked him about such use, let alone whether he actually used Retin-A and failed to disclose it.
At his deposition, plaintiff denied he had been using retinoids. Aff. of Thomas H. Hanna, Jr., Ex. G (McCabe Dep.), NYSCEF Doc. No. 89, at 58-60. As defendants present no admissible evidence that he used any medication, they fail to raise a factual issue whether he had been using Retin-A. Given the absence of evidence that plaintiff used Retin-A, any dispute regarding whether the technician performing the hair removal procedure inquired about plaintiff's use of retinoids before the procedure is immaterial.
Nor did the technician testify at her deposition regarding the protocol she followed in performing the laser hair removal procedure October 17, 2013: her technique; the settings, calibration, or functioning of the machine used; or her inquiry about plaintiff's use of retinoids. Nor do any admissible business records disclose those facts. The technician testified only regarding her usual protocol. Evidence of a regular procedure "does not suffice for purposes of showing it was followed." White v. MP 40 Realty Mgt. LLC, 187 A.D.3d 561, 562 (1st Dep't 2020); Gautier v. 941 Intervale Realty LLC, 108 A.D.3d 481, 481 (1st Dep't 2013). See Hill v. Manhattan N. Mgt., 164 A.D.3d 1187, 1187 (1st Dep't 2018); Socorro v. New York Presbyt. Weill Cornell Med. Ctr., 160 A.D.3d 544, 544 (1st Dep't 2018); Sada v. August Wilson Theater, 140 A.D.3d 574, 574 (1st Dep't 2016); Dylan P. v. Webster Place Assoc., L.P., 132 A.D.3d 537, 538 (1st Dep't 2015). Therefore defendants' expert is bereft of any foundation for a conclusion that the treatment plaintiff received was not performed negligently and did not depart from the standard of care for laser hair removal. Colon v. 385 Fifth Ave., LLC, 188 A.D.3d 486, 487 (1st Dep't 2020); Reif v. Nagy, 175 A.D.3d 107, 125-26 (1st Dep't 2019); Montilla v. St. Luke's-Roosevelt Hosp., 147 A.D.3d 404, 407 (1st Dep't 2017);'Espinoza v. Federated Dept. Stores, Inc., 73 A.D.3d 599, 600 (1st Dep't 2010). The expert's affidavit based on Azarowicz's testimony regarding her usual protocol may not support a judgment as a matter of law that she followed that protocol October 17, 2013. Guido v. Fielding, 190 A.D.3d 49, 54-55 (1st Dep't 2020).
Moreover, plaintiff presents the contrary opinion of his expert, Arash Akhavan, M.D., who concludes that the burn plaintiff sustained occurs during hair removal treatment only when it is performed negligently, due to poor technique, incorrect settings or calibration of the machine, or its malfunction, and is not a normal and accepted risk of laser hair removal. Hanna Aff. Ex. B (Aff. of Arash Akhavan, M.D.), NYSCEF Doc. No. 105, ¶¶ 24, 28. See Dosanjh v. Satori Laser Ctr. Corp., 127 A.D.3d at 532. Doctor Akhavan explains that, although standard procedure required the technician to ask plaintiff whether he had been using retinoids, the causes of his burn would be the same even if plaintiff had been using Retin-A when he received the hair removal treatment. Hanna Aff. Ex. B ¶ 26.
Azarowicz herself admitted that the failure to shave the areas to which hair removal treatment is to be applied causes burning and, again, did not testify that she shaved any of plaintiff's face or forehead or checked whether any area was shaved October 17, 2013. Again, she testified only that her practice was to do so. Plaintiff on the other hand, testified that Azarowicz did not shave between his eyebrows, where his burn developed. His expert corroborates that a failure to shave plaintiff's forehead "greatly increased" the risk of a burn. Id. ¶ 28. Finally, Azarowicz also acknowledges that that a blister did develop in the area of the treatment. Thus, while plaintiff's use of retinoids is immaterial, the disputes between the parties' experts whether the technician followed standard protocol in performing the laser hair removal procedure and t whether plaintiff's injury could have occurred absent negligence leave factual issues to be determined at a trial.
V. CONCLUSION
In sum, the court grants defendants' motion for summary judgment in part. C.P.L.R. § 3212(b) and (e). The court dismisses all claims against the individual defendants Zahra Mamdani and Yusyf Mamdani and the nonentity Central Park Aesthetic & Laser. The court denies defendants' motion for summary judgment dismissing the claims against the entity defendant Y. Mamdani, M.D., P.C., conducting business under the name Central Park Aesthetic & Laser, and also denies defendants' request to dismiss the claims against the individual defendant Erszebeth Azarowicz. This decision constitutes the court's order and judgment dismissing the claims against all defendants except Y. Mamdani, M.D., P.C., and Azarowicz.