Dziegielewski v. Advanced Intergrative Wellness LLC
| Decision Date | 27 October 2010 |
| Docket Number | Motion Sequence: 007,Index No. 18467/06,Motion Sequence: 008 |
| Citation | 2010 NY Slip Op 33047 |
| Parties | CAROLYN DZIEGIELEWSKI, Plaintiff(s), v. ADVANCED INTERGRATIVE WELLNESS, LLC, d/b/a HEALTHBRIDGE MEDICAL ASSOCIATES, P.C., HEALTHBRIDGE MEDICAL ASSOCIATES, P.C., ELYSIUM DAY SPA, and DYNATRONICS, INC., Defendant(s). |
| Court | New York Supreme Court |
The following papers read on this motion:
Notice of Motion/Order to Show Cause........................XX
Answering Papers..........................................................X
Reply..............................................................................X
Briefs: Plaintiffs/Petitioner's........................................
Honorable Karen V. Murphy
This motion by the defendant Dynatronics, Inc. for an order pursuant to CPLR §§ 3211, 3212 granting it summary judgment dismissing the complaint and any and all cross claims against it is granted.
This cross motion by the plaintiff Carolyn Dziegielewski for an order pursuant to 22 NYCRR 130-1.1 granting her costs and sanctions is denied.
The plaintiff in this action alleges that she sustained injuries as a result of "Synergie Cellulite Reduction" services which she received at the defendant Elysium Day Spa ("the Spa") from November, 2003 until June, 2004. She alleges that the defendant Dynatronics developed, manufactured and distributed the Synergie AMS Device used in treating her. She also alleges that the Spa was a subsidiary of defendants Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associate, P.C., ("Advanced") and Healthbridge Medical Associate, P.C. ("Healthbridge") and that those defendants managed, controlled and operated it. The Spa employee who treated the plaintiff, Valerie Onerato, was in fact on Advanced's payroll for a brief period while she was treating the plaintiff.
The plaintiff alleges that advertisements for the treatment as well as conversations with Onerato were materially misleading in that they represented that the Synergie AMS Device had been "approved" and "cleared" by the Federal Drug Administration and that certain results would be achieved which were unsubstantiated; that the defendants knowingly made those false representations intending to fraudulently induce consumers like her to undergo treatment with Dynatronics' Synergie AMS Device; and, that she justifiably relied on those representations to her detriment. She alleges that had she not been so induced by the defendants, she would not have undertaken treatment by the defendants with Dynatronics' product and that she sustained psychological and medical injuries as a result.
The plaintiff advances causes of action sounding in res ipsa loquitur, negligence, deceptive acts and false advertising in violation of General Business Law §§ 349, 350 and common law fraud. The injuries for which she seeks to recover are chronic myofascial pain syndrome, numbness and tingling in her lower extremities, insomnia, depression and anxiety.
The defendants Advanced and Healthbridge have cross claimed against Dynatronics seeking contribution.
The defendant Dynatronics presently seeks summary judgment dismissing the complaint and any and all cross claims against it. Although it also sought dismissal of the fraud claim as untimely pursuant to CPLR §3211(a)(5), that request has been withdrawn, rendering the plaintiffs motion pursuant to 22 NYCRR 130-1.1 moot.
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 (2d Dept., 2004), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (Sheppard-Mobley v. King, supra, at p. 74; Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra).
Once the movant's burden is met, the burden shifts to the opposing party party to establish the existence of a material issue of fact. (Alvarez v. Prospect Hosp., supra, at p. 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. (See, Demshick v. Community Housing Management Corp., 34 A.D.3d 518, 521, 824 N.Y.S.2d 166 (2d Dept., 2006), citing Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563 [2d Dept., 1990]).
By order dated March 9, 2010, this court directed that the plaintiff is precluded from offering any evidence or testimony regarding the defendants' statements or advertising that allegedly misled her as well as any evidence of medical treatment received on account of her alleged injuries that had not been previously disclosed.
The plaintiff testified at her examination-before-trial that she first went to the Spa in August 2003 after seeing an advertisement in North Shore Today for hypnosis treatment. While waiting in the waiting room, she reviewed information regarding the Synergie AMS Device which she discussed with Onerato, who both performed hypnosis at the spa and treated customers with the Synergie AMS Device. The plaintiff testified that before undergoing treatment with Dynatronics' device, she undertook to investigate it on her own by reviewing the Spa's cellulite price list as well as internet research. She testified that she reviewed Healthbridge's website as well as others because she wanted to be sure that the Synergie AMS device was "approved" by the Food and Drug Administration. At her examination-before-trial, she testified that she had read that the Synergie AMS device was "cleared" by the Food and Drug Administration but said she did not know the difference between "cleared" and "approved." Her first complaint regarding her legs was made to Onerato at the Spa in May 2004. Her first medical visit regarding her symptoms which were allegedly caused by Dynatronics' Synergie AMS Device occurred on June 4, 2004 when she saw Dr. Edelson of Advanced and Healthbridge, to whom Onerato had referred her when she complained of pain. When she saw Dr. Edelson, the plaintiff complained of her legs' appearance and she inquired about a leg lift. Dr. Edelson found nothing wrong with the plaintiff and referred her to a plastic surgeon. When she saw Dr. Greenberg in 2004, he told her that she did not need a leg lift and he found nothing wrong with her, either. The plaintiff saw her own doctor, Dr. Livotti in July 2004 for pain and burning.
The plaintiff has acknowledged that her first cause of action sounding in negligence and res ipsa loquitur fails as against Dynatronics. In fact, the res ipsa loquitur claim fails vis-a-vis Dynatronics because the Synergie AMS Device, which was used to treat the plaintiff was not within its exclusive control. (See, Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 226, 492 N.E.2d 1200, 501 N.Y.S.2d 784 [1986]). And, her negligence claim also fails as against Dynatronics because Dynatronics did not use its product on the plaintiff. In any event, the plaintiff has not supplied a Bill of Particularsregarding the manner in which the equipment was improperly operated and maintained and via this court's orders dated July 22, 2008 and March 2, 2010, she has been precluded from submitting any such evidence.
To recover under General Business Law § 349," a plaintiff must establish that the defendant has engaged' in an act or practice that is deceptive or misleading in a material way and that [she] has been injured by reason thereof.' " (Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 162, 893 N.Y.S.2d 208 (2d Dept., 2010), quoting Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 55, 720 N.E.2d 892, 698 N.Y.S.2d 615 (1999), quoting Oswego Laborers' Local 214 Pension Fund v.Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 647 N.E.2d 741, 623 N.Y.S.2d 529 [1995]). And, the misleading and/or deceptive act or practice must be aimed at the consuming public at large, e.e., it must be consumer-oriented misconduct. ). Furthermore, to be actionable, "the alleged deceptive acts, representations or omissions must be misleading to a 'reasonable consumer.'" (Goshen v. Mut Life Ins. Co. of New York, 98 N.Y.2d 314, 344, 774 N.E.2d 1190, 746 N.Y.S.2d 858 (2002) citing Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., supra, at p. 25; Karlin v. IVF America, Inc., 93 N.Y.2d 282, 712 N.E.2d 662, 690 N.Y.S.2d 495 (1999); Gaidon v. Guardian Life Ins. Co. of America, 94 N.Y.2d 330, 725 N.E.2d 598, 704 N.Y.S.2d 177 [1999]). Neither intent to defraud nor justifiable reliance are elements of this statutory cause of action Wilner v. Allstate Co., supra, at p. 162, citing Small v. Lorillard Tobacco Co., supra, at p. 55. "However, proof that 'a material deceptive act or practice caused actual although not necessarily pecuniary harm'' is required to impose compensatory damages." (Wilner v. Allstate Ins. Co., supra, at p. 162, quoting ...
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