Opinion
06-07-2016
Kyle HAMPTON, Plaintiff–Respondent, v. UNIVERSAL DENTAL, et al., Defendants, Sol Stolzenberg, D.M.D., P.C. doing business as Toothsavers, Defendant–Appellant. Laurence R. Danziger, D.M.D., P.C., doing business as Universal Dental, Third–Party Plaintiff, Sol S. Stolzenberg, D.M.D., P.C., doing business as Toothsavers sued herein as Sol Stolzenberg, D.M.D., doing business as Toothsavers, Third–Party Plaintiff–Appellant, v. David Cohen, etc., et al., Third Party–Defendants.
Gordon & Silber, P.C., New York (Steven H. Mutz of counsel), for appellant. Joel M. Kotick, New York, for respondent.
Gordon & Silber, P.C., New York (Steven H. Mutz of counsel), for appellant.
Joel M. Kotick, New York, for respondent.
FRIEDMAN, J.P., RENWICK, ANDRIAS, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 10, 2015, which, to the extent appealed from as limited by the briefs and appealable, denied the motion of defendant/third-party plaintiff Sol S. Stolzenberg, D.M.D., P.C., d/b/a Toothsavers (Toothsavers N.Y.) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, the motion is granted, with leave for plaintiff to amend the pleadings to name the proper entity, without costs.
The motion court correctly found that questions of fact existed regarding the relationship between Toothsavers N.Y. and defendants David Cohen, as executor of the estate of Morton Cohen, D.D.S., and Morton Cohen, PA (Toothsavers NJ) (see Fields v. Seavey Org., 258 A.D.2d 414, 415, 685 N.Y.S.2d 729 [1st Dept.1999] ). Further, questions of fact exist as to whether Toothsavers N.Y. is vicariously liable for the malpractice of Toothsavers NJ, if any, based upon a theory of agency by estoppel, also known as ostensible agency. Evidence exists indicating that plaintiff reasonably believed that the orthodontic treatment provided to him was by Toothsavers N.Y., albeit in a satellite New Jersey office, rather than on referral to a different practice altogether (see Welch v. Scheinfeld, 21 A.D.3d 802, 808, 801 N.Y.S.2d 277 [1st Dept.2005], citing Hannon v. Siegel–Cooper Co., 167 N.Y. 244, 60 N.E. 597 [1901] ; see also Sarivola v. Brookdale Hosp. & Med. Ctr., 204 A.D.2d 245, 245–246, 612 N.Y.S.2d 151 [1st Dept.1994], lv. denied 85 N.Y.2d 805, 626 N.Y.S.2d 756, 650 N.E.2d 415 [1995] ). Notably, only one dental chart was kept for plaintiff, with notations made on it without respect to whether treatment was being rendered by Toothsavers N.Y. or Toothsavers NJ. Plaintiff testified that he was angry at having to travel to New Jersey, but felt he had no choice since he had paid in advance for his orthodontic treatment at Toothsavers N.Y. Plaintiff was given a business card by Toothsavers N.Y. listing both addresses under the name “Toothsavers,” without any indication that the two were separate practices.
Similarly, Toothsavers N.Y. is not entitled to summary judgment under the independent contractor defense as to those individual dentists who performed orthodontic work upon plaintiff. Plaintiff did not seek out any of the orthodontists Toothsavers N.Y. claims were independent contractors. Rather, he went to the practice based upon a newspaper advertisement for “Toothsavers,” and could not even recall the full names of most of the individuals who treated him. And Toothsavers NY's position that plaintiff's claim that Dr. Stolzenberg, D.M.D., P.C.'s purchase of Toothsavers N.Y. from its prior owner, a dentist who had lost his license, was somehow fraudulent or a sham does not warrant dismissal on the doctrine of estoppel. To hold otherwise would permit Dr. Stolzenberg to benefit from his alleged fraudulent acts.
Toothsavers NY's arguments regarding punitive damages are academic, as they prevailed on that point below and thus are not an aggrieved party (CPLR 5511 ; T.D. v. New York State Off. of Mental Health, 91 N.Y.2d 860, 862, 668 N.Y.S.2d 153, 690 N.E.2d 1259 [1997] ). Plaintiff did not file a cross appeal and we decline plaintiffs' suggestion to review this issue sua sponte.
In light of the confusing record, while Toothsavers NY's argument that dismissal is warranted because plaintiff named and served an incorrect entity, Sol S. Stolzenberg, D.M.D., d/b/a Toothsavers, rather than his eponymous professional corporation d/b/a Toothsavers, may have some merit, we grant leave to plaintiff to serve and amend the pleadings to reflect the proper entity; we note the lack of any showing of prejudice.