Johnson v Body Solutions of Commack, LLC

[*1] Johnson v Body Solutions of Commack, LLC 2008 NY Slip Op 50964(U) [19 Misc 3d 1131(A)] Decided on April 3, 2008 Suffolk Dist Ct Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 3, 2008; it will not be published in the printed Official Reports.

Decided on April 3, 2008
Suffolk Dist Ct

Latashen Johnson, Plaintiff

against

Body Solutions of Commack, LLC, Defendant



HUSC 769-07



Appearances:

Latashen Johnson

Plaintiff Pro-se

Body Solutions of Commack, LLC

Defendant Pro-se

C. Stephen Hackeling, J.

Please take notice that after a review of the testimony and evidence submitted and deliberation thereon, the Court awards judgment to the plaintiff for the sum of $4,995 together with statutory interest from May 3, 2007, costs and disbursements. It is undisputed that the plaintiff entered into a written contract (dated May 3, 2007) with Body Solutions of Commack, LLC to obtain a Thermage treatment to tighten her stomach area. The plaintiff paid $4,995 for a single treatment ( approximately 30 minutes in length) wherein the defendant allegedly applied capacitive radio frequency generated heat to plaintiffs' stomach area in order to tighten post childbirth wrinkled skin. The plaintiff alleges that unrealistic, misleading and false representations were made to her during her consultation, that she borrowed $4,995 to pay for treatment and that the service had no beneficial effect whatsoever upon her stomach.

The Facts

Specifically, plaintiff was told she would have a single 30 minute treatment, which would improve the appearance of her stomach area. The defendant provided plaintiff with a brochure titled "Tummy by Thermage," (plaintiffs' Exhibit 3 in evidence). This brochure depicts numerous before and after treatment photos; all said photos of treatments being allegedly performed by medical doctors. This brochure contains a telephone number and two website addresses: "www. Thermage .com " and "www. tummybythermage.com".

When the first website is accessed, this feature and these words appear, "If you would like to ask a doctor about the Thermage Procedure, and whether its right for you, you can find a physician in your area with the "Locate a Doctor" feature at the top of this page." Indeed there is [*2]a search bar which requests "zip code and radius." When a zip code local to defendants' address is entered and a radius, the following appears: "Physician Near You. Body Solutions of Commack, 283 Commack Rd., Suite 205, Commack, NY," followed by the website "www. BodySolutionsUS.com." One using the websites, provided to him or her by the defendant, will thus be led to believe they are dealing with medical doctors when they go to Body Solutions of Commack.

Moreover, another page on this site, describes "The Thermage Procedure" as "available only in the offices of qualified physicians who specialize in cosmetic procedures." The following language is also found on this site. "Thermage treatments are only performed in a doctor's office by Thermage-certified personnel . . . normally the complete procedure can be performed in just one session lasting from 20 minutes to two hours depending on the treatment area." Again the website provided to the plaintiff for reference promises that treatment will be provided exclusively in a physician's office. The term physician is commonly understood to mean "a person legally qualified to practice medicine; a medical doctor." (Random House Unabridged Dictionary 2006). Doctor means medical doctor. The area of this website entitled "for physicians" states as follows: Thermage "is a medical procedure that delivers the benefits your patients are looking for. . . subtle, long-lasting results in a single treatment without surgery. . ." There was no indication or evidence that the plaintiff was treated in a physician's or doctor's office or by a doctor. It is undisputed that the treatment was conducted by a non-physician.

Defendants' inclusion in small print of its authorization form, that "the amount of treatments and results will vary from patient to patient" does not vitiate the express promises and descriptions regarding expected results given to the plaintiff during her consultation, nor the representations made on the web sites, as discussed above. Plaintiff would expect some positive results for her payment of $4,995.

An individual using the literature provided by the defendant and the web-based materials which defendant's literature specifically invited plaintiff to access, would reasonably expect that he or she was being treated in a doctor's office, by a qualified physician specializing in cosmetic procedures," and that a single 20 minute session recommended by defendant would produce actual improvement in her physical condition; which would be "immediately visible and would continue for up to six months." The undisputed testimony regarding the results of plaintiff's treatment, is that it produced no visible improvement or positive results. Although the defendant in its forms, obtained plaintiff's authorization to take before and after treatment photographs, defendant did not offer any photographs into evidence, nor was there testimony from defendant that plaintiff's visible appearance was improved. The Court has compared after treatment photographs (plaintiff's Exhibit A-F in evidence) with the after treatment photographs in [*3]defendant's literature, and draws the inference that the treatment was ineffective.

Issues Presented

In a small claims action, the Court shall conduct hearings "in such a manner as to do substantial justice between the parties consistent with concepts of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence. . ." (UDCA 1804). A small claims litigant does not prepare or serve a formal pleading, rather he or someone on his behalf, delivers a statement of his claim to the Clerk, who reduces same to "a concise written form. . ." UDCA 1803. The informal nature of the layman facilitated small claims process dispenses with. . .the need for the plaintiffs to articulate all requisite elements of causes of action, and instead places the responsibility on the tribunal to ascertain from the proof what legal issues" must be determined. Dvoskin v. Levitz Furniture Co., Inc. 9 Misc 3d 1125A (District Ct., Suffolk 2005).

The Court finds that the plaintiff has established that the defendant violated §349 of the General Business Law. " General Business Law §349 declares unlawful deceptive acts or practices in the conduct of any business, trade or commence or in the furnishing of any service in the state', with no further elaboration of prohibited conduct. . .It is a broad, remedical, consumer oriented statute", that applies "to virtually all economic activity" and provides a private remedy to individuals. See, Oswego Laborers' Local 214 Pension Fund et al v. Marine Midland Bank, 85 NY 20, 24 (NY 1995). G.B.L. §349. Karlin v. IVF Am., 93 NY2d 282, 290 (NY 1999).

Additionally, the scope of the General Business Law Sec. 350, is equally broad and prohibits the promulgation of "false advertising in the conduct of any business, trade or commence or the furnishing of any service in New York State". False advertising is that which is "misleading in a material respect". General Business Law Sec. 350 (a) [1]. "These statutes on their face apply to virtually all economic activity. . . and their application has been correspondingly broad. Karlin, supra, at 290. See, Perez v. Hempstead Motor Sales, 173 Misc 2d 710, aff'd 176 Misc 2d 314 [automotive dealer]; Baker v. Burlington Coat Factory Warehouse, 175 Misc 2d 951 [clothing retailer]: Medical service providers are not exempt "from the reach of G.B.L. Article 22-A" or "from the broad remedial purposes of G.B.L. §349 and §350", Karlin, supra, at 291. The New York State Attorney General has used G.B.L. §349 and §350 to combat fraud in the health care and medical services area. See, People v. Overs Enters., Sup. Ct. Westchester County, Colabella, J., Index No. 16621/92 (marketing of AIDS related products); People v. D.J. Carlisi, Sup. Ct., NY County, Ostrau, J., Index No. 41189/89 (baldness treatments); People v. Tolbert, Sup. Ct., Clinton County, Davidson, J., Index No. 35678/97 (hearing aids). [*4]

A General Business Law §349 claim is "set forth where plaintiff alleges consumer-oriented conduct that is deceptive or misleading in a material way, which causes actual injury. . . A deceptive act or practice has been objectively defined as a representation or omissions. . . likely to mislead a reasonable consumer acting responsibly under the circumstances. . . "

See Marcus v. AT & T Corp., 138 F3d 46 (2nd Cir. 1998). Reliance, however, is not required to prevail on a General Business Law claim; causation is all that is needed." Mitchell v. Handler, 2001 NY Slip Op. 400664, (NY Sup. Ct., Nassau 2001). While physicians may receive some protection under Public Health Law §2805 (d), physicians who "chooses to reach out to the consuming public at large in order to promote business. . . like clothing retailers, automobile dealers and wedding singers who engage in such conduct (even). . . they subject themselves to the standards of an honest marketplace secured by General Business Law §§ 349, 350". Karlin v. IVF America, supra at 349.

The type of conduct alleged here is consumer-oriented, rather than affecting a single individual only. Printed advertisements which are mass-mailed to local residents and internet websites (describing services) are designed to attract the maximum number of potential patients. The actions of the defendant, through its employee's verbal representations, through its literature, and through the websites said literature invites the plaintiff to visit, which assert that plaintiff was receiving "a medical procedure" in a facility which was a physician's or doctor's office, and that a single 20 minute treatment would produce noticeable positive results for the plaintiff were misleading. In actuality the two individuals which the website holds out as associated with the defendant's Commack facility, are not medical doctors at all. The Court finds that the defendant has engaged in deceptive conduct under General Business Law §349 by not treating her in a medical doctor's office under the proper supervision of a medical doctor and/or by representing to the plaintiff that she would receive noticeable beneficial results from a single 30 minute treatment and that the lack of proper medical involvement and supervision caused the lack of positive results.

For these reasons, judgment as specified above, is awarded in favor of the plaintiff for the sum of $4,995, together with interest thereon from May 3, 2007 and costs.

____________________________

J.D.C.

Dated:_________________ [*5]