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Ades v. 57Th Street Laser Cosmetica, LLC

United States District Court, Second Circuit

June 6, 2013



KEVIN NATHANIEL FOX, Magistrate Judge.

Cynthia Ades ("Ades") and Abdo Ades commenced this action for damages arising out of the defendants' laser treatment of Ades. Ades alleges that, on November 3, 2011, she underwent a laser procedure known as a photo facial and skin rejuvenation treatment to lighten freckles and remove sunspots from her face and chest. The treatment was performed by Leslie Nesbitt ("Nesbitt"), who used a Cutera hand-held laser. Ades asserts that, upon the application of the laser to her, she developed welts, and the skin over her face and body began to bubble, she became dizzy, nauseous and started sweating profusely. According to Ades, as a result of the laser treatment administered by the defendants, she sustained severe burns. Ades has asserted the following claims: (1) negligence and gross negligence; (2) a violation of New York Education Law § 6512; (3) negligence per se; (4) intentional tort; (5) deceptive practices under New York General Business Law ("GBL") § 349; (6) breach of contract; and (7) fraud in the inducement. Ades's spouse, Abdo Ades, has asserted a loss of consortium claim.[1] Before the Court are: (a) the plaintiffs' motion for summary judgment and for sanctions, "including a default judgment, for furnishing false and fabricated evidence in discovery"; and (b) the defendants' motion for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Plaintiffs' Motion

The plaintiffs contend that the doctrine of res ipsa loquitur should be applied and, concomitantly, Ades should be "granted summary judgment on liability." According to the plaintiffs, Nesbitt's admission "that she failed to conduct a test spot on the plaintiff's skin before applying the laser device to her, as well as the fact that she admittedly failed to follow the protocols established for use of the laser, is sufficient to establish as a matter of law that the occurrence complained of would not have occurred in the absence of her negligence." The plaintiffs contend that "the injuries occurred immediately upon exposing [Ades] to the light of the laser. And, had a test spot been conducted beforehand, it would have resulted in an adverse reaction so that the use of the laser would have been immediately abandoned." Moreover, it is "an irrefutable fact in this case that the instrumentality causing the injury was solely in the possession and under the exclusive control of the defendant[s]" because, at all times, Nesbitt controlled all the settings on the laser and made calibrations pertaining to its use. The plaintiffs maintain that it is undisputed that: (a) Ades "walked into the defendants' offices with no burns, welts or any skin injuries"; (b) Ades was examined by Nesbitt, who completed a chart pertaining to Ades's history; and (c) "immediately upon the application of the laser, her skin instantly began to bubble, and welts and burns appeared and broke out all over her face and chest." According to the plaintiffs, Nesbitt's treatment notes, including "burns on face & chest, " and Ades's history in the defendants' records, show that nothing else "would have caused the plaintiff to have suffered the burns she did, except for the laser" operated by Nesbitt; thus, the only reasonable inference is that the negligent operation of the laser proximately caused Ades's injuries.

The plaintiffs contend that Nesbitt "produced [, during discovery, ] what appears to be an esthetics license that has been tampered with and fraudulently altered' in order to deceive the plaintiff and to falsely give the appearance that she is licensed by the New York State Department of Licenses." They maintain that "[t]his fabrication of evidence is a fraud upon both this Court and upon the plaintiffs by intentional spoliation of evidence concerning an issue that is central to the truth-finding process." According to the plaintiffs, the fabrication of evidence "is meant to impose further expenses upon the plaintiff and to obstruct all of her efforts to recover for the injuries negligently sustained at the hands of the defendants." The plaintiffs seek judgment by default or any other sanction the Court deems appropriate.

In support of the motion, the plaintiffs submitted Ades's affidavit stating that, on "November 11, 2011, " she underwent a laser procedure, "known as a photo facial and skin rejuvenation treatment to lighten freckles and remove sunspots from my face and chest, " at the defendants' 57th Street Laser Cosmetica, LLC location, in Manhattan. According to Ades, "[t]his procedure involved exposing me to a hand[-]held medical laser device applied directly to my face and chest by a laser technician, " Nesbitt. Ades states that "[a]t no time was a test spot ever performed on me, either on the day of my injury or at any time previously." She explains that she was unable to see what Nesbitt was doing during the treatment, because she kept her eyes closed for fear of an eye injury. Ades maintains that she did not participate in any manner in operating the laser device Nesbitt used to perform the treatment. She states that she felt pain and a burning sensation while Nesbitt was using the laser and asked Nesbitt to stop, but Nesbitt told her "that it was [a] natural feeling and that all will be well." According to Ades, when Nesbitt finished, the burning sensation and pain were so intense that she became dizzy, nauseous and started to sweat profusely. When Ades looked at the mirror in the treatment room, she observed that she was "severely burned; welts and blisters began immediately appearing and breaking out all over my face and chest." That same day, Ades visited a dermatologist who treated her injuries.

The plaintiffs submitted exhibits in support of their motion, including: (1) Exhibit No. 1, the complaint in this action; (2) Exhibit No. 2, the defendants' answer; (3) Exhibit No. 3, the esthetics license produced by the defendants during discovery; (4) Exhibit No. 4, a portion of Nesbitt's deposition transcript; (5) Exhibit No. 5, a certification by the New York Department of State concerning Nesbitt's license; (6) Exhibit No. 6, an e-mail message, dated February 6, 2013, from Whitney A. Clark, an associate attorney, Office of Counsel for the New York State Department of State, to the plaintiffs' attorney; (7) Exhibit No. 7, Nesbitt's curriculum vitae; (8) Exhibit No. 8, a portion of the manufacturer's treatment guidelines for the use of the Cutera laser device; (9) Exhibit No. 9, a portion of 57th Street Laser Cosmetica, LLC's treatment guidelines for the use of the Cutera laser device; (10) Exhibit No. 10, a portion of Nesbitt's deposition transcript; (11) Exhibit No. 11, the defendants' history, evaluation and treatment notes concerning Ades; (12) Exhibit No. 12, Nesbitt's treatment notes; (13) Exhibit No. 13, a portion of Joshua Fink, M.D.'s ("Fink") deposition transcript; (14) Exhibit No. 14, a decision issued by administrative law judge Robert Schneir, of the New York Department of State, dated January 28, 2010; and (15) Exhibit No. 15, a portion of Ryan Bloch's ("Bloch") deposition transcript. The plaintiffs also submitted their statement, pursuant to Local Civil Rule 56.1 of this court.

Defendants' Opposition to the Plaintiffs' Motion

The defendants contend that Ades failed to establish that the res ipsa loquitur doctrine applies. They maintain that "Fink testified that multiple factors would go into the assessment of why a person would sustain the burns as reflected in the photos produced by plaintiff's counsel, " including the person's history, "how the IPL [intense pulse light] was applied" and "why it was done." Moreover, the manual for the laser device "provided it was a guideline, " and Ades "was exposed on atleast [sic] one prior occasion at the same or higher settings." The defendants contend that "Fink testified that one need not do a test spot each and every time the IPL is used, " and Ades "offered no expert proof to support the contention that the injury in question was as [sic] a result of the negligent application of the IPL device, "or that "the departure of not doing a test spot on November 11th, despite the fact that use of the IPL at the same or higher settings was without complaint in May 2011 and that failure to do [a] test site in November... was a substantial factor in bringing about the injuries." The defendants assert that the plaintiffs' citation to an administrative proceeding is "objectionable and insufficient as hearsay" and not binding. They contend that the "issue of Ms. Nesbitt's licensure, if such issue is ultimately not resolved in Ms. Nesbitt's favor prior to the time of trial, as a violation of an administrative regulation promulgated pursuant to statute is simply some evidence of negligence." The defendants assert that the plaintiffs "failed to address the issue of piercing the veil to establish liability" with respect to Bloch Group, LLC or Block.

The defendants contend that the plaintiffs' request for sanctions should be denied, because the "defendants complied with plaintiffs' demands subject to objections under cover of June 29, 2012, " and "provided additional discovery on January 14, 2013." Moreover, the plaintiffs' counsel "had the opportunity to question all witnesses, " including Nesbitt. "The only issue raised is as to the credibility of defendant Nesbitt, and plaintiff confronted her at deposition." According to the defendants, the plaintiffs make no claim against any other defendant that would warrant preclusion of his or her testimony.

In support of their opposition, the defendants submitted an affirmation by their attorney, [2] with exhibits, which are either not identified or identified improperly by the attorney's affirmation: (i) Exhibit A, a portion of Ades's deposition transcript; (ii) Exhibit B, a portion of Nesbitt's deposition transcript; (iii) Exhibit C, a document entitled "Informed Consent, " dated May 4, 2011; (iv) Exhibit D, Bloch's deposition transcript; (v) Exhibit E, Fink's deposition transcript; and (vi) Exhibit F, letters from the defendants' attorney to the plaintiff's attorney, dated June 28 and September 24, 2012. The defendants did not submit a statement, pursuant to Local Civil Rule 56.1 of this court.

Plaintiffs' Reply

In reply, the plaintiffs submitted their attorney's affirmation, contending: (a) "the defendants' acts are tantamount to the deliberate obstruction of justice"; (b) "the entire test[i]mony of the defendant Nesbitt should be stricken"; (c) "the defendants' acts justify a claim for punitive damages"; and (d) "the defendants are grasping at straws by speculating that plaintiff's injuries could have been caused by anything other than their own negligence."

Defendants' Motion

By their notice of motion, the defendants seek an order: (1) "[d]ismissing the First Count" against Bloch, the Bloch Group, LLC and Fink; (2) "[d]ismissing Counts II, III, IV, and VI on behalf of all defendants"; (3) dismissing "Count VII" against Bloch and the Bloch Group, LLC; (4) "[d]ismissing Count VIII"[3] against Fink; (5) "[d]ismissing Count IX" against the Bloch Group, LLC, Bloch and Fink; and (6) "[g]ranting summary judgment on the basis of the release." The defendants contend that the claims against Fink should be dismissed because, in an action "sounding in medical malpractice, " a plaintiff must establish that the defendant deviated from the accepted standard of medical practice and the deviation was the proximate cause of the alleged injury. According to the defendants, the plaintiff offered no "indicia of the forming of a physician/patient relationship such as to support any allegation of negligence vis-à-vis Dr. Fink." The defendants contend that, since it is undisputed that Fink was not in the room when services were rendered to the plaintiff, and no proof exists that he directed or caused any advertisement identifying himself in connection with the services, no basis exists for any claims against Fink. The defendants assert that the plaintiffs failed to establish a claim for practicing medicine without a license because the services rendered do not constitute the practice of medicine and are close to the practice of "esthetics" within the meaning of GBL § 400(6).

The defendants maintain that the plaintiff also failed to establish an intentional tort claim because "there is a claim for negligent application of fotofacial services" and no showing of "intent to cause injury to plaintiff" on the part of Nesbitt. Furthermore, the plaintiff failed to establish breach of contract because no privity is shown to exist among Ades and Fink, Bloch and Bloch Group, LLC, and the breach of contract cannot lie where "the gravamen of the claim is negligence in rendering the services" and Ades executed an informed consent document. According to the defendants, Ades also failed to establish the deceptive acts and deceptive trade practices claims because she "can point to no injury as a result of any misrepresentation on the part of Bloch, Fink, or the like." Moreover, Ades did not support her claim for punitive damages, and "Count I should be dismissed" because "[i]t is well settled law that exculpatory language is sufficient."

In support of the motion, the defendants submitted an affirmation by their attorney with exhibits and their Local Civil Rule 56.1 statement. The defendants' exhibits include: (a) Exhibit A, the complaint in this action; (b) Exhibit B, the answer; (c) Exhibit C, Ades' deposition transcript; (d) Exhibit D, Fink's deposition transcript; (e) Exhibit E, Bloch's deposition transcript; and (f) Exhibit F, the records of 57th Street Laser Cosmetica, LLC pertaining to Ades.

Plaintiffs' Opposition to the Defendants' Motion

The plaintiffs contend that Nesbitt's employer is liable "for her torts under the doctrine of respondeat superior, " because Nesbitt's acts "unquestionably fit the standards enunciated by the Courts is [sic] assessing vicarious liability that are binding upon the employer." According to the plaintiffs, Bloch "acknowledged having had prior notice of the numerous lawsuits stemming from laser burn injuries sustained by defendants' clients, " but permitted "Nesbitt to operate a dangerous instrumentality" without a license and training. The plaintiffs maintain that Ades's consent is "insufficient to vitiate [the defendants'] negligent conduct, " because "[t]he signing of an informed consent form is not a defense to negligence." The plaintiffs maintain that the defendants "knowingly enabl[ed] Leslie Nesbitt and plac[ed] her in a position to operate a dangerous instrumentality, ... despite the fact that her defendant-employer had actual knowledge of her lack of a license, her lack of training, and her lack of skill and the necessary credentials to operate that device." Furthermore, the "defendants' payment records for the services rendered by Joshua Fink indicate that he is being paid for s upervisiorm ' services, " and his name is listed in the materials distributed in the defendants' offices. According to the plaintiffs, "the infliction of injury by one who is unlicensed is either evidence of negligence or negligence per se to be submitted to the finder of the facts." The plaintiffs maintain that awarding punitive damages is warranted because the defendants employed "knowingly [an] unlicensed and untrained individual in whose hands [they chose] to place a most dangerous instrumentality, ... subjecting the public to their procedures without any warning or notification whatsoever of its employee's lack of qualifications and credentials."

In support of their opposition to the motion, the plaintiffs submitted Ades's affidavit and their attorney's affirmation with: (i) Exhibit No. 16, "defendant's ledger sheet of payments made to Joshua Fink, M.D."; (ii) Exhibit No. 17, "the records of Alyson Penstein, M.D., including those for emergency treatment rendered to plaintiff on November 3, 2011, the day of her injury"; (iii) Exhibit No. 18, "one of defendants' advertisements indicating Dr. Joshua Fink as one of Our Supervisors' and one of Our Consultants'"; (iv) Exhibit No. 19, a Notice to Admit served by the plaintiffs on Nesbitt; (v) Exhibit 20, "one of the defendants' many internet advertisements"; and (vi) Exhibit No. 21, Nesbitt's deposition testimony.

Defendants' Reply

The defendants contend that the "plaintiff may not raise issues in [an] affidavit in opposition to [the] summary judgment motion not raised at deposition." According to the defendants, in her deposition testimony, Ades "denied speaking to a physician at any time, denied ever speaking with Dr. Fink and ultimately denied hearing Dr. Fink's name until November 3, 2011 and denied asking to speak with a physician between May 3, 2011 and November 3, 2011." Furthermore, Ades "denied reviewing any literature prior to starting with 57th STREET LASER COSMETICA, LLC or relying upon any pamphlets that she may have seen in the office." While Ades "testified that she saw pamphlets of doctors in the waiting area, she could neither identify the doctors referred to therein or [sic] otherwise describe those pamphlets." The defendants assert that Ades's statement, in her affidavit, "that she asked to speak with a physician on subsequent occasions" is contradicted by her deposition testimony. They maintain that the plaintiffs "improperly cite the standard for cosmetology as applicable to esthetics, " in connection with the allegation that Nesbitt lacked the requisite training. The defendants assert that the record is devoid of any proof of willful misconduct on their part, Ades's gross negligence claim must fail and her allegations regarding the improper use of the equipment by Nesbitt are speculative and ...

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