Santos v Art of Natl. Beauty Ctr.

[*1] Santos v Art of Natl. Beauty Ctr. 2017 NY Slip Op 51697(U) Decided on December 14, 2017 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2017
Supreme Court, Kings County

Laura Santos, Plaintiff,

against

The Art of National Beauty Center, Dr. Mark Kostin and Jasmine Louis, Defendants.



6913/10



Attorney for Plaintiff

Rawlins Law, PLLC

300 Cadman Plaza West, 12th floor

Brooklyn, NY 11201

(718) 855-3005

Attorney for Defendant Dr. Kostin

Moris, Duffy, Alonso & Faley, L.L.P.

2 Rector Street -22nd floor

New York, NY 10006

(212) 766-1888

Attorney for defendant

The Art of Natural Beauty Center and Jasmine Lewis

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.

708 Third Avenue, Suite 2500

New York, NY 10017

(212) 967-0800
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant The Art of National Beauty Center (hereinafter TANBC) filed on February 17, 2017, under motion sequence number five for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint of Laura Santos [*2](hereinafter Santos).

- Notice of Motion

- Affirmation in support

- Exhibit A-I

- Affirmation of Santos in opposition [FN1]

- Two unlabeled exhibits

- Affirmation in reply

One annexed exhibit

Recitation in accordance with CPLR 2219 (a) of the papers considered on the cross motion of defendant Dr. Mark Kostin (hereinafter Dr. Kostin) filed on April 4, 2017, under motion sequence number six for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue of liability and dismissing the complaint.

- Notice of cross motion

- Affirmation in support

- Exhibit A-H

- Affirmation of Santos in opposition

- Two unlabeled exhibits

BACKGROUND

On March 18, 2010, Santos commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office (KCCO). TANBC interposed an answer to the complaint dated April 15, 2010. Dr. Kostin interposed an answer to the complaint dated April 22, 2010.

By notice of motion filed on January 30, 2013, Santos moved for leave to amend the complaint pursuant to CPLR 3025. By decision and order issued on March 15, 2013, the Court granted Santos leave to amend the complaint. The amended complaint added a cause of action for battery against TANBC and a cause of action for fraudulent misrepresentation and violations of General Business Law §§ 349, 350 against all defendants.

The amended complaint was filed with the KCCO on March 19, 2013 and contained forty-three allegations of fact in support of five causes of action. The first cause of action asserted a claim of negligence as against TANBC. The second cause of action asserted a claim of negligence as against Jasmine Louis. The third cause of action asserted a claim of fraudulent misrepresentation as against all the defendants. The fourth cause of action asserted a claim for violations of General Business Law §§ 349, 350 against all defendants. The fifth cause of action asserted a claim of battery as against Jasmine Louis and TANBC.

The amended verified complaint alleged the following salient facts. On March 7, 2010, Santos received professional laser hair removal services from the defendants at a facility operated by TANBC. Prior to March 7, 2010, TANBC and Dr. Kostin maintained a website which contained, among other things, information regarding Laser hair removal service. On the website, they fraudulently represented that Dr. Kostin worked directly with TANBC in providing the service. TANBC also fraudulently represented to Santos that Dr. Kostin and Jasmine Louis, [*3]a technician, were licensed, authorized and competent to do laser hair removal. They also fraudulently represented that Dr. Kostin would personally oversee and supervise the services. Santos relied on these representations.

Jasmin Louis also represented to Santos on behalf of the defendants that she was authorized or licensed to perform laser hair removal. On March 7, 2010, the defendants through Jasmin Louis, caused, permitted and allowed Santos to sustain disfiguring second degree burns to her face caused by the unskillful, careless and negligent performance of the hair removal. Santos claims that the fraudulent advertising by TANBC and Dr. Kostin on their website and in the literature they disseminated violated General Business Law §§ 349, 350. Santos also claims that the fraudulent misrepresentation mislead the public at large and deceived her into thinking that Dr. Kostin was affiliated with TANBC and that Dr. Kostin would oversee and supervise the procedure. Santos further claims that TANBC and Jamine Louis committed a battery upon Santos by touching her in a harmful and offensive manner.

By answer to the amended complaint dated April 1, 2013, TANBC joined issue. By answer to the amended complaint dated April 23, 2013, Dr. Kostin joined issue.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

The Claims Against TANBC

TANBC has moved for summary judgment dismissing the first cause of action based on Santos's execution of a general release covering the claims of negligence. TANBC seeks dismissal of the third cause for action for fraudulent misrepresentation as duplicative of the fourth cause of action for violations of General Business Law §§ 349, 350. TANBC seeks dismissal of the fourth and fifth cause as time barred.

In support of the motion TANBC has submitted an affirmation of its counsel and nine annexed exhibits. The annexed exhibits contain the original and amended pleadings of Santos and TANBC, Santos original response to TANBC's demand for a bill of particulars, transcripts of Santos' deposition testimony and a document denominated "Treatment Consent and Release".

The Negligence Claim

The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury (Roberson v Wyckoff Heights Medical Center, 123 AD3d 791 [2nd Dept 2014]). A defendant seeking summary judgment dismissing a claim of common law negligence claim must make a prima facie showing that it either had no duty or breached no duty to the plaintiff, or that if it did breach a duty owed to the plaintiff, that the breach did not proximately cause the plaintiff's injuries. A defendant may also meet its burden by making a prima facie showing of a complete defense to the negligence claim.

In the instant action, TANBC contends that Santos' execution of the "Treatment Consent and Release" (hereinafter the subject release) provided a complete defense to the claims based on negligence. TANBC alleges that on February 2, 2010, Santos signed the subject release. After signing the release, the plaintiff received laser hair removal services. The laser hair removal services of February 2, 2010 are not the subject of this action. Plaintiff then received laser hair removal services on March 7, 2010. The laser services performed on March 10, 2017, are alleged to have caused the injuries complained of in the instant action.

Release is a contract, and its construction is governed by contract law (Pacheco v 32-42 55th Street Realty, LLC, 139 AD3d 833 [2nd Dept 2016] citing, Kaminsky v Gamache, 298 AD2d 361 [2nd Dept 2002]). In general, "a valid release constitutes a complete bar to an action on a claim which is the subject of the release" (Pacheco, 139 AD3d 833 citing, Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]). "A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake " (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]), quoting, Mangini v McClurg, 24 NY2d 556, 563 [1969]). Moreover, there is a requirement that a release covering both known and unknown injuries be fairly and knowingly made (see Pacheco, 139 AD3d 833 citing, Mangini, 24 NY2d at 566).

The subject release was signed on February 2, 2010 and the injury causing hair removal was performed on March 7, 2010. The fact that the subject release predates the hair removal services performed on March 7, 2010 by a month raises a triable issue of fact as to whether the release covered the claim of negligence. The movants have failed to establish that the release adequately covered both known and unknown injuries of the laser hair removal performed on Santos on March 7, 2010. The release, on its face, does not remove all triable issues of fact as to whether it was meant to cover future laser hair procedures or only the procedure performed on February 10, 2010.

Further, Santos has claimed that TANBC and Dr. Kostin fraudulently misrepresented in their published website and in the literature that they provided her that the laser hair removal would be overseen and supervised by Dr. Kostin. Although TANBC annexed Santos' deposition transcript, it did not address Santos's claims regarding the misrepresentation by TANBC and Dr. [*4]Kostin. Furthermore, TANBC did not submit a copy of either its web page or of the literature that it disseminated to the public to advertise and explain its services. As a result, TANBC did not eliminate all material issues of fact as to whether the subject release was procured by fraud, and thus whether release was enforceable, precluding summary judgment (see Pacheco, 139 AD3d 833).

The Fraudulent Misrepresentation Claim

TANBC seeks dismissal of Santos' claim for fraudulent misrepresentation as duplicative of the fourth cause of action alleging violations of General Business Law §§ 349, 350. To recover damages for fraudulent misrepresentation, a plaintiff must prove: (1) a misrepresentation or an omission of material fact which was false and known to be false by defendant; (2) misrepresentation was made for purpose of inducing the plaintiff to rely upon it; (3) justifiable reliance by plaintiff on the misrepresentation or material omission; and (4) injury (Lewis v Wells Fargo Bank, N.A., 134 AD3d 777, 778 [2nd Dept 2015).

"The elements of a cause of action to recover damages for deceptive business practices under General Business Law § 349 are that the defendant engaged in a deceptive act or practice, that the challenged act or practice was consumer-oriented, and that the plaintiff suffered an injury as a result of the deceptive act or practice" (Nafash v Allstate Ins. Co., 137 AD3d 1088 [2nd Dept 2016] citing, Valentine v Quincy Mut. Fire Ins. Co., 123 AD3d 1011, 1015 [2nd Dept 2014]). "A party claiming the benefit of General Business Law § 349 must, as a threshold matter, charge conduct that is consumer oriented, i.e., conduct that has a "broad impact on consumers at large" (Nafash v Allstate Ins. Co., 137 AD3d 1088 [2nd Dept 2016] citing, JP Morgan Chase Bank, N.A. v Hall, 122 AD3d 576, 581 [2nd Dept 2014]).

Santos' amended complaint plead the following salient facts. TANBC and Dr. Kostin maintained a website which contained, among other things, information regarding laser hair removal services. On the website, they fraudulently represented that Dr. Kostin worked directly with TANBC in providing such service. TANBC also fraudulently represented to her that Dr. Kostin and Jasmine Louis, a technician, were licensed, authorized and competent and that Dr. Kostin would personally oversee and supervise the procedure. Santos relied on the representation to her detriment and sustained disfiguring facial burns by the unsupervised and negligently performed procedure. Dr. Kostin did not oversee and supervise the hair removal services.

By this alleged conduct, TANBC and Dr. Kostin misled the general public into believing that the Laser hair removal service was being overseen and supervised by a competent, experienced licensed physician. The misleading website was consumer oriented, deceptive and impacted the public at large. The misleading information caused Santos to submit to laser hair removal services which caused her to sustain facial burn injuries.

Contrary to TANBC's contention, Santos' claim for fraudulent misrepresentation is not duplicative of the fourth cause of action alleging violations of General Business Law §§ 349, 350. Although some of their respective elements overlap, they have distinct and different elements and are supported by distinct facts (see generally, Ullmann-Schneider v Lacher & Lovell-Taylor, P.C.,121 AD3d 415, 416 [2nd Dept 2014]). Accordingly, TANBC's motion to dismiss the Santos' claim for fraudulent misrepresentation as duplicative of the fourth cause of action alleging violations of General Business Law §§ 349, 350 is denied.

[*5]The General Business Law §§ 349, 350 Claims

TANBC seeks dismissal of the fourth cause of action alleging violations of General Business Law §§ 349, 350 as time barred. Santos' breach of General Business Law §§ 349, 350 are both governed by a three-year statute of limitations (Pike v New York Life Ins. Co.,72 AD3d 1043, 1047-48 [2nd Dept 2010] citing, CPLR 214 [2]; Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d 201, 208 [2001]).

Pursuant to CPLR 203 (f), a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. "The sine qua non of the relation back doctrine is notice, and the requisite notice must be contained in the pleading to which relation back is sought (Lawyers' Fund for Client Protection of The State of New York v JP Morgan Chase Bank, N.A., 80 AD3d 1129, 1130 [3rd Dept 2011]). In the case at bar, TANBC correctly contended that the GBL claims do not relate back to the original complaint.

In moving to dismiss a cause of action as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired; the burden then shifts to plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (Muscat v Mid-Hudson Medical Group, P.C., 135 AD3d 915, 916 [2nd Dept 2016]).

If that burden is met then the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Muscat, 135 AD3d at 916 citing, Marrero v Sosinsky, 130 AD3d 883, 883 [2nd Dept 2015]).

TANBC contends that based on the allegations in the amended complaint, March 7, 2010, the date of Santos's alleged injury, is the date the claim for General Business Law violations accrued. TANBC further contends that the cause of action was commenced on March 19, 2013, the date the amended complaint was filed with the Kings County Clerk's office. Since the commencement date was more than three years after the accrual date, TANBC contends that the claim is time barred.

TANBC, however, did not make a prima facie showing that the claims for General Business Law violations was time barred. The filing of Santos's motion for leave to amend the complaint to add the General Business Law violations occurred on December 31, 2012.[FN2] The filing of the motion was sufficient to toll the statute of limitations because it included a copy of the proposed supplemental summons and amended complaint, but was not itself the interposition of the claim within the meaning of CPLR 203 (a) (see Perez v Paramount Communications, 92 NY2d 749, 756 [1999]). Thus, from the date the toll began until it ended on March 19, 2013 (the date of entry of the order granting Santos permission to add those claims) the statute of [*6]limitations was tolled. Therefore, after the discounting of the days of the toll, it is clear that Santos' filing of the supplemental summons and amended complaint on March 19, 2013 with judicial permission timely commenced the action as of December 31, 2012 (see Perez, 92 NY2d at 756).

The Battery Claim

TANBC seeks dismissal of the fifth cause of action for battery as time barred.

The elements of battery are bodily contact, made with intent, and offensive in nature (Thaw v North Shore University Hosp., 129 AD3d 937 [2nd Dept 2015] citing Cerilli v Kezis,16 AD3d 363, 364 [2nd Dept 2005]). The amended complaint alleges that TANBC and Jasmine Louis committed a battery upon Santos by touching her in a harmful and offensive manner in that they failed to follow basic safety rules related to laser hair removal. The harmful and offensive touching refers to the allegedly botched Laser hair removal service performed on March 7, 2010.

The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive (Id.). The original complaint does not set forth or give notice of a claim for the intentional tort of battery. Therefore, the battery claim does not relate back to the original complaint pursuant to CPLR 203 (f) and is deemed commenced as of December 31, 2012, the filing date of the motion to amend the complaint to assert the battery claim. A cause of action sounding in battery is governed by a one-year statute of limitations (see CPLR 215 [3]). Inasmuch as the offensive touching occurred on March 7, 2010, the claim for battery had to be commenced on or before March 7, 2011. When Santos filed the motion for leave to amend the complaint, the battery claim was already time barred.

TANBC has made a prima facie showing that the claim of battery interposed in the proposed amended pleading was time already time barred as of March 7, 2011. In opposition Santos failed to raise a triable issue of fact.

The Claims Against Dr. Kostin

Dr. Kostin has moved for summary judgment dismissing the third cause for action for fraudulent misrepresentation and the fourth cause of action which alleges violations of General Business Law §§ 349, 350. Dr. Kostin's motion is supported by an affirmation of his counsel and eight annexed exhibits labeled A through H. Exhibit A is a copy of the transcripts of the oral argument of Santos' motion to amend the complaint conducted on March 15, 2013. Exhibit B and C are Santos' and Dr. Kostin's amended pleadings, respectively. Exhibits D, E, F and G are the deposition transcripts of Santos, Jasmine Louis, Ioulia Almeida, and Dr. Kostin, respectively. Exhibit H is a copy of the note of issue.

Dr. Kostin's contends that he has no ownership interest in TANBC, that he had nothing to do with its formation and that he has no connection to the laser hair removal service performed at TANBC. He further contends that he neither performs laser hair removal or participated in the procedure that was performed on Santos that is the subject of the claim. Dr. Kostin, however, admits that he does work out of the TANBC location on Wednesday and Thursday afternoons when he does botox and tissue filler injections. He also admits that he co-signed a loan for the purchase of the laser hair removal equipment that was used in this procedure. Dr. Kostin's assertions do not eliminate all material issues of fact regarding Santos' claims for fraudulent misrepresentation and violations of General Business Law §§ 349, 350. They do not address Santos' claim of misrepresentation by TANBC and Dr. Kostin's on their website or on the [*7]literature they provided regarding his oversight and supervision of the laser hair removal procedure. In sum, Dr. Kostin's motion papers only raise triable issues of fact and does not establish prima facie entitlement to judgment as a matter of law. The cross motion is denied, regardless of the sufficiency of Santos' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

CONCLUSION

The Art of National Beauty Center's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint is granted in part and denied in part.

It is granted as to the fifth cause of action for battery.

It is denied as to the first cause of action for negligence; the third cause of action for fraudulent misrepresentation; and the fourth cause of action for violations of General Business Law §§ 349 and 350.

Dr. Mark Kostin's motion for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue of liability and dismissing the complaint as asserted against him is denied in its entirety.

The foregoing constitutes the decision and order of this Court.

Dated: December 14, 2017

HON. FRANCOIS A. RIVERA

J.S.C. Footnotes

Footnote 1:The same affirmation was used to oppose the motion of TANBC and the cross motion of Dr. Mark Kostin.

Footnote 2:The Court reviewed the Kings County Clerk's office minutes to obtain the filing date, December 31, 2012, and the notice of entry date, March 19, 2013 granting Santos' motion to amend the complaint. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).