OSBORNE v. MERCHANT SQUARE DENTAL PLLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated February 22, 2024.  The order granted the motion of the defendants Merchant Square Dental, PLLC, and Syed Masihuddin for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Merchant Square Dental, PLLC, and Syed Masihuddin which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Merchant Square Dental, PLLC, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

On October 23, 2018, the plaintiff, who was an employee of the defendant Merchant Square Dental, PLLC (hereinafter MSD), allegedly sustained injuries when the defendant Alexander Lee extracted her wisdom teeth, including tooth number 17, at MSD's office.  Thereafter, the plaintiff commenced this action against MSD, Lee, and the defendant Syed Masihuddin, MSD's principal.  The plaintiff asserted, inter alia, causes of action to recover damages for dental malpractice and lack of informed consent, and alleged that MSD was vicariously liable for Lee's and Masihuddin's conduct.

MSD and Masihuddin (hereinafter together the moving defendants) moved for summary judgment dismissing the amended complaint insofar as asserted against them.  Among other things, the moving defendants argued that Lee was an independent contractor, not an employee of MSD, and that there was no dentist-patient relationship between the plaintiff and Masihuddin.  In an order dated February 22, 2024, the Supreme Court granted the moving defendants' motion.  The plaintiff appeals.

The moving defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against Masihuddin.  The evidence they submitted demonstrated that Masihuddin did not provide dental care to the plaintiff and that no dentist-patient relationship existed between Masihuddin and the plaintiff (see Mathura v. Makaryus, 237 A.D.3d 808, 811, 231 N.Y.S.3d 569;  Tanzman v. Ghislaine, 205 A.D.3d 837, 838, 165 N.Y.S.3d 863).

With respect to a CVS Pharmacy prescription record (hereinafter the CVS record) that the plaintiff submitted in opposition to the moving defendants' motion, the Supreme Court should not have, sua sponte, refused to consider it on the ground that the record was not certified and was therefore hearsay.  The parties did not litigate this issue or have an opportunity to address it (see County Acquisitions, LLC v. Lanser, 235 A.D.3d 831, 836, 229 N.Y.S.3d 160;  Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 52, 984 N.Y.S.2d 401).  Further, “in civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 54–55, 984 N.Y.S.2d 401 [internal quotation marks omitted];  see Costor v. AT & T Servs., Inc., 187 A.D.3d 1135, 131 N.Y.S.3d 236).

Nevertheless, even considering the CVS record, the plaintiff failed to raise a triable issue of fact.  Although the CVS record showed prescriptions for a pain killer and an antibiotic, Masihuddin's name, and the date of October 24, 2018, the day after the extraction, the evidence demonstrated that it was Lee, not Masihuddin, who directed the plaintiff to take those medications as postoperative care for the extraction that Lee performed.  Indeed, the evidence demonstrated that Masihuddin was not present at MSD on the day of the extraction or the following day.  To the extent that the plaintiff contends that an X-ray of her mouth taken in May 2018 at MSD raised triable issues of fact as to the existence of a dentist-patient relationship with Masihuddin, the plaintiff testified at her deposition that the X-ray was taken to test the X-ray machine.  Significantly, the plaintiff testified at her deposition that Masihuddin did not treat her at any time.  Accordingly, the Supreme Court properly granted that branch of the moving defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against Masihuddin (see Mathura v. Makaryus, 237 A.D.3d at 812, 231 N.Y.S.3d 569).

However, the Supreme Court should not have granted that branch of the moving defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against MSD. The moving defendants contend that because Lee was an independent contractor, not an employee, MSD cannot be vicariously liable for Lee's alleged malpractice.  “The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts” (Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712;  see Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d 712, 713, 4 N.Y.S.3d 59).  “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercised control over the results produced or, more importantly, the means used to achieve the results” (Bravo v. Vargas, 113 A.D.3d 579, 582, 978 N.Y.S.2d 307;  see Chan v Toothsavers Dental Care, Inc., 125 A.D.3d at 713, 4 N.Y.S.3d 59).  Here, the moving defendants failed to establish, prima facie, that Lee was an independent contractor and not an MSD employee, as the deposition testimony of Lee and Masihuddin presented triable issues of fact as to whether MSD had control over important aspects of the services Lee performed (see Chan v Toothsavers Dental Care, Inc., 125 A.D.3d at 713, 4 N.Y.S.3d 59;  see also Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d 433, 437–438, 912 N.Y.S.2d 551, 938 N.E.2d 984;  Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736–737, 469 N.Y.S.2d 78, 456 N.E.2d 1201;  Matter of Mark Slovin, D.D.S., P.C. [Hartnett], 158 A.D.2d 824, 825, 551 N.Y.S.2d 409).  Accordingly, MSD was not entitled to summary judgment dismissing the complaint insofar as asserted against it on this ground.

The parties' remaining contentions either need not be reached in light or our determination or are without merit.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.