CARTAGENA v. John Hansford, D.M.D., et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Michael A. Frishman, J.), entered April 8, 2024, which denied defendant Dimitriy Volotsenko, D.D.S.’s motion to dismiss the amended complaint, unanimously affirmed, without costs.

The motion court correctly denied defendant Volotsenko's CPLR 3211(a) motion.  There is no basis to conclude that Volotsenko is directly liable for malpractice because he was not personally involved in the treatment of the patient (see Yovich v. Montefiore Nyack Hosp., 212 A.D.3d 425, 426, 181 N.Y.S.3d 241 [1st Dept. 2023]).  Volotsenko denied any such involvement, there is no reference to him in the dental records, and plaintiff did not claim otherwise before the motion court.

Nevertheless, Volotsenko's motion to dismiss was properly denied.  Plaintiff has sufficiently alleged that Volotsenko may be held liable to the extent he effectively controlled all aspects of the clinic's administration, including its compliance with regulations regarding staffing and emergency protocols during the provision of anesthesia.  Volotsenko did not submit documentary evidence proving otherwise (see Brown v. LaFontaine–Rish Med. Assoc., 33 A.D.3d 470, 470–471, 822 N.Y.S.2d 527 [1st Dept. 2006]).  Additionally, plaintiff has sufficiently alleged a claim for vicarious liability based on the allegation that Volotsenko supervised or controlled plaintiff's treating dentist (see Business Corporation Law § 1505[a][i];  Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79–80, 499 N.Y.S.2d 904, 490 N.E.2d 823 [1986]).  Volotsenko's affirmation denying this allegation does not constitute sufficient documentary evidence for the purposes of a CPLR 3211(a)(1) motion (Patterson Belknap Webb & Tyler LLP v. Marcus & Cinelli LLP, 227 A.D.3d 505, 506, 213 N.Y.S.3d 1 [1st Dept. 2024]) and does not conclusively establish a defense to plaintiff's claim as a matter of law (Holder v. Jacob, 231 A.D.3d 78, 87, 216 N.Y.S.3d 134 [1st Dept. 2024]).