Voss v. Mandak Veterinary Servs.

Voss v Mandak Veterinary Servs. 2024 NY Slip Op 33398(U) September 30, 2024 Supreme Court, Saratoga County Docket Number: Index No. EF20233361 Judge: Richard A. Kupferman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA

DECISION & ORD ER SHARIN YOSS,

Plaintiff, Index No.: EF20233361

-against-

MA OAK VETER! ARY SERVICES, THEODORA JEANNE SMITH, D.V.M. (A/KIA TEDDY SMITH, D.V.M.). SARA BRYN RAD IGA , D.V.M., HEATHER A E TILLSO , D.V.M.,

Defendants.

Appearances:

Peggy L. Collen, Esq. Attorney for Plaintiff 17 State Street. Floor 40 ew York. e\.\ York 10004

Brian P. Henchy. Esq. Wilson Elser Moskowitz Edelman & Dicker LLP Attorneys for Defendants 200 Great Oaks Boulevard, Suite 228 Albany, ew York 12203

KUPFERMA , J.:

In this action, the plaintiff asserts claims against a veterinary practice, its owner (a

veterinarian), and two employees (associate veterinarians) in connection with the treatment of her

dog. The complaint asserts five causes of action. The first cause of action is for veterinary

malpractice. The remaining causes of action are for lack of informed consent, negligence,

corporate negligence. and negligent infliction of emotional distress. The complaint also contains

a demand for punitive damages. [* 1]

In lieu of an answer, the defendants seek to dismiss the complaint pursuant to CPLR

32 11 (a)(7) for failure to state a claim. In support of the motion, the defendants rely upon an

affirmation from their litigation counsel, records from the veterinary practice (attached to the

attorney affirmation), and a memorandum of law.

In opposition, the plaintiff relies upon an attorney affirmation, an affidavit from herself,

and a memorandum of law. In her affidavit. the pla intiff accuses the defendants of altering the

veterinary records to bolster their defense. She asserts that the veterinary records provided to the

Court by the defendants are different from the records provided to her prior to the commencement

of this action. In reply, the defendants have submitted an affirmation from the owner of the

practice. While admitting that there are ··several differences·· between the records. the owner

asserts that the differences are immaterial and that the records were not altered to fabricate

evidence or mislead .

On a motion to dismiss under C PLR 321 1(a)(7). the Court must --accept the facts as alleged

in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and

determine only whether the facts as alleged fit within any cognizable legal theory .. (Connaughton

v Chipotle Mexican G rill. Inc .. 29 Y3d 137. 141 [20 17) [i nternal quotation marks. brackets, and

citation omitted]). ··Whether the complaint wilt later survive a motion for summary judgment. or

whether the plaintiff will ultimate ly be able to prove its claims, of course, plays no part in the

determination of a prediscovery CPLR 32 11 motion to dismiss" (Shaya B. Pacific. LLC v. Wi lson.

Elser. Moskowitz. Edelman & Dicker. 38 AD3d 34. 38 [2d Dept 2006)).

··The sole criterion ... is whether, from the pleading" s four comers, factual allegations are

discerned which taken together manifest any cause of action cognizable at law'· (Doller v Prescott,

167 AD3d 1298. 1299 [3d Dept 20 18) [internal quotation marks, brackets, and citation omitted]).

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While a court may under limited circumstances consider extrinsic evidence from the movant, such

evidence may not fonn the basis for dismissal unless it ··conclusively establishes the falsity of an

alleged fact° (Gray v Schenectady Citv chool Dist., 86 AD3d 771, 772 [3d Dept 2011 ]).

First Cause of Action (Veterinary Malpractice)

With respect to the first cause of action. the plaintiff has sufficiently alleged facts that, if

true. would constitute veterinary malpractice. The plaintiff alleges, among other things. that a

veterinarian employed by the practice (Dr. Radigan) \,\,TOngfully prescribed medication which

resulted in her dog's death, and that another employee-veterinarian (Dr. Tillson) failed to properly

treat the dog"s adverse side effects from the medication. When read broadly. the first cause of

action further seeks to hold the veterinary practice and its owner liable for the alleged malpractice

of their associates. These allegations are sufficient to state a claim for veterinary malpractice (see

CPLR 3013; 3026; 32 l l[a][7]; 3 Y Jur Animals § 162 [NY Jur 2d, West 2024] [discussing

veterinary malpractice]: see also BCL § 1505 [a] [i] [shareholder liability]: 2 Warren ·s Negligence

in the ew York Courts § 42.04 [I] [Bender2024] [doctrine ofrespondeat superior]).

Even if the Court were to look at the veterinary records. beyond the four comers of the

complaint, the malpractice claim would still survive this motion. As explained above, to justify

summary dismissal. the extrinsic evidence relied upon by the defendants on this motion must

conclusively establish the fals ity of the alleged facts in the complaint (see Gray. 86 AD3d at 772;

see also CPLR 3211 [a][ l ]: Lewis v Di Donna, 294 AD2d 799. 800 [3d Dept 2002]). Specifically,

the evidence must be of ··undeniable authenticity .. (Siegel, Practice Commentaries, McKinney"s

Cons Laws of Y, Book 7B, CPLR C32 I I : l 0). The contents of the evidence must also be

unambiguous and --essentially undeniable" (id: see Mason v First Cent. atl. Life Ins. Co. of .Y ..

86 AD3d 854. 855 [3d Dept 20 11] [medical records]).

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The defendants have fai led to satisfy this standard. The records are uncertified and have

not been properly authenticated; rather, they were simply attached to the affirmation of the

defendants· litigation counsel (see CPLR 4518; Ingber v Mario L. Martinez. 191 AD3d 959. 961

[2d Dept 2021 ); VXI Lux Holdco S.A.R.L. v SIC Holdings. LLC. 171 AD3d 189, 193 [ I st Dept

20 I 9)). In addition. while the records reiterate the care allegedly provided. they do not set forth

the applicable standard of care. or could the average layperson conclude as a matter of law,

based solely on the medical records, that the veterinarians complied with the standard of care. The

records are therefore fac ially incapable of conclusively demonstrating the absence of any

malpractice (see 3 Y Jur Animals § 162 [NY Jur 2d. West 2024) [.. Ordinari ly, in a veterinary

malpractice action. expert testimony is necessary to establish the applicable standard of care, as

well as a deviation from such standard ... unless the matter is one within the experience and

observation of the average layperson."']). 1

The defendants next contend that the malpractice claim should be dismi ssed as against the

two associate veterinarians, as they were acting within the scope of their employment when they

provided care and treatment to the dog. As authority for this proposition, the defendants cite to

Mendez v City of ew York. 259 AD2d 441 ( I st Dept 1999), which holds that employees may

not be held individually liable for torts committed by their employers where such employees did

not commit any .. independently tortious conduce (id. at 442). The defendants, however,

misinterpret Mendez (as well as other s imilar cases cited in their reply papers). They erroneously

interpret Mendez as holding that an employee who participates in the commission of a tort may

not be held individually liable if the employee was acting on behalf of the employer.

1 The contents of business records created by an opposing party are also not conclusive of the facts. To the extent that the plaintiff may have a different personal recollection or otherwise obtains contrary evidence during discovery. she is entitled to challenge their accuracy.

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Mendez, however, did not decide this issue. There, the plaintiff sought to hold the

employee liable for a tort allegedly committed by an employer. Here, the situation is reversed.

The plaintiff is seeking to hold the employer liable for a tort (malpractice) allegedly committed by

employees. Indeed, the claim against the employees is based on their own independent conduct

(i.e., their care and treatment of the dog).

ln any event. the First Department (which decided Mendez) has since clarified that a person

··who participates in the commission of a tort ma} be held individually liable. regardless of ",hether

[such person] acted on behalf of the corporation in the course of official duties·· (Peguero v 601

RealN Corp .. 58 AD3d 556. 558 [ Ist Dept 2009]: see also W. Joseph McPhillips Inc. v Ellis. 278

AD2d 682 [3d Dept 2000]: Bellinzoni v eland. 128 AD2d 580 [2d Dept I 987]: Krvstal G. v

Roman Catholic Diocese of Brooklyn. 3 ➔ Misc 3d 531 [Sup Ct. Kings County 2011 ]).

To the extent that any doubt may exist. Warren· s egligence further explains that ··[t]he

employee and the vicariously liable employer are jointly and severally liable'· (2 Warren ·s

egligence in the ew York Courts § 42.04 [12] [Bender 2024]). The plaintiff•·may sue either or

both the employee and employer and may recover the total amount of damages from either party ..

(id.). imilarly. ew York Practice Guide further clarifies that corporate directors and officers

who commit or participate in the commission of a tort may be held personally liable ··even if [the

tort] was committed in the course of their duties and for the corporation's benefiC ( I Y Practice

Guide: Business and Commercial§ 6.14).

Second Cause of Action (Lack of Informed Consent)

The defendants further contend that a veterinary malpractice claim based on the lack of

informed consent is not cognizable. In support of this contention. the defendants assert that ··there

is no statutory right of action for lack of informed consent in veterinary malpractice cases·· and

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that such a claim must ·'arise out of common law·' (Defendants' Memorandum of Law, at Page 4) .

The defendants further assert. without citing any legal authority. that a claim under the common

law for lack of informed consent is duplicative of a claim for professional negligence.

In Laskowitz v CI BA Vision Corp., 215 AD2d 25 (2d Dept 1995), the Second Department

held that the statutory provision governing a claim based on the lack of informed consent, Public

Health Law § 2805-d, did not apply to the defendant (an optometrist), as the statute limits itself to

actions based on medical, dental, and pediatric malpractice. The court nonetheless discussed the

common law doctrine of informed consent and explained that the purpose of the statute's

enactment in 1975 (medical profession) and its ensuing amendments in 1985 (dentists) and 1986

(podiatrists) was not to e liminate a common law claim for lack of informed consent against all

health care providers. Rather, the purpose was to place limitations on such a claim for those

professions covered by the statute. Further, the court concluded that, for the rest of the

professionals listed in Title VIII of the Education Law (including veterinarians), a lack of informed

consent claim remains --legally and logically cognizable" (id. at 28), and that ··the other health care

professions not named in Public Health Law § 2805-d remain bound by their traditional, common-

law duty to obtain a patient"s informed consent"' (id. at 3 1).

Based on the holding in Laskowitz, as well as the case law recognizing the distinct nature

of a lack of informed co nsent claim under the common law, this Court cannot blindly agree with

the defendants that the second cause of action for lack of informed consent is duplicative of the

first cause of action based on professional negligence (see ~ Garone v Roberts' Technical &

Trade School, Inc., 4 7 AD2d 306 [ I st Dept 1975]; Zeleznik v Jewish Chronic Disease Hospital,

4 7 AD2d 199 [2d Dept 1975]; Di Rosse v Wein, 24 AD2d 510 [2d Dept 1965]; Barnette v Potenza,

79 Misc 2d 51 [Sup Ct, assau County 1974]). To the contrary, the claims appear to be factually

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and legally distinct and should be pleaded and (if appropriate) submitted to the jury separately.

Moreover, although the plaintiff has pleaded facts relevant to the lack of informed consent in both

the first and second causes of action, this does not require dismissal of the second cause of action

as duplicative, as pleading defects must be ignored where a substantial right of a party is not

prejudiced (see CPLR 3026). 2

Turning now to the legal sufficiency of the allegations. the second cause of action clearly

fai ls to state a claim against Dr. Tillson. In fact. the second cause of action does not even reference

Dr. Tillson. The second cause of action is therefore dismissed as against Dr. Tillson. In contrast,

the plaintiffs allegations are sufficient to state a claim for lack of informed consent as against Dr.

Radigan (directly) and the other two defendants (derivati\'ely). Among other things. the plaintiff

alleges that Dr. Radigan failed to inform her of the risks associated with the use of a prescribed

medication and the a lternative treatment options; that a reasonable practitioner in similar

circumstances would have disclosed such risks and alternatives; that the plaintiff, like a reasonably

prudent person. would not have used the prescribed medication if the risks and alternatives had

been disclosed; and that such nondisclosure has caused her to suffer injuries (see~ Public Health

Law § 2805-d [sening fonh the elements of a medical malpractice claim based on the lack of

informed consent and providing that the claim may be based on --non-emergency treatment"]:

Marchione v State, 194 AD2d 851 [3d Dept 1993] [alleged use of medication without full

disclosure of the risks]; Muchler v Brenton. 207 AD2d 977 [4th Dept 1994] [same]: Farkas v

~ - 191 AD2d 178 [1 st Dept 1993] [same]; Abril v Syntex Laboratories. Inc., 81 Misc 2d 112

1 A review of Public Health Law § 2805-d (considered by analogy) also refutes the defendants' bald conclusion that the claims are duplicative (see e.g. Burgos v Bieniewicz, 135 AD3d 810 [2d Dept 20 16] [holding that lack of informed consent is a distinct cause of action from medical malpractice]; PJr 2: 150 & 2: 150A: see also Snyder v Simon. 49 AD3d 954 [3d Dept 2008]).

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[Sup Ct, New York County 1975]; compare Brady v Westchester County Healthcare Corp., 78

AD3d 1097 [2d Dept 201 0] [involving the alleged fai lure to properly diagnose and treat]).

Accordingly, the second cause of action is dismi ssed as against only Dr. Tillson. That part

of the motion seeking to dismiss the second cause of action against the remaining defendants is

derued. 3

Third Cause of Action (Negligence)

Regarding the cause of action for negligence. the defendants contend that the claim sounds

in professional malpractice. not ordinary negligence. and therefore should be dismissed. A claim

sounds in professional malpractice. not ordinary negligence, when it constitutes treatment for a

medical condition undertaken by a licensed professional (see Angell v State, 278 AD2d 776, 777

[3d Dept 2000]). Here. the duty alleged to have been breached arises from the treatment and care

provided. Specifically. the plaintiff seeks to recover based on the alleged improper evaluation and

diagnosis. the prescription of medicine. and the alleged failure to properly treat the dog's adverse

side effects from the medication. Such a claim is grounded in professional malpractice (see

Education Law § 670 1 [defining the practice of veterinary medicine as including ..diagnosing,

treating.... [and] prescribing for any animal disease, ... injury.... or physical condition . . ..,]; Gale

v Animal Med. Ctr. , 108 AD3d 497, 498-499 [2d Dept 20 13] [dismissing gross negligence claim

as duplicative]; see also Angell, 278 AD2d at 777-778 [claim sounded in malpractice where the

allegation stemmed from an improper assessment of the decedent·s condition]). Accordingly, the

negligence claim is duplicati ve of the malpractice claim and is therefore dismissed.

3 otably. the parties have not adequately briefed the potential application and scope of a lack of informed consent claim against a veterinarian. This part of the motion is therefore denied, without prejudice.

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Fourth Cause of Action

The fourth cause of action alleges corporate negligence. When the allegations therein are

construed broadly. it appears that the plaintiff is seeking to impose liability on the veterinary

practice and its owner under the doctrine of respondeat superior. This is how both sides have

construed the complaint (see Plaintiffs Memorandum of Law, at Page 23; Defendants·

Memorandum of Law, at Page 7). As di scussed above, this theory of liability is already

encompassed within the first cause of action for veterinary malpractice. This portion of the fourth

cause of action is therefore dismissed as duplicative.

In addition. when read broadly. the fourth cause of action also asserts direct claims against

the veterinary practice and its o~ner for negligent hiring. retention. training. and supervision. The

Court agrees that such claims are unnecessary and should be dismissed in cases where a defendant

employer admits that it would be responsible to pay any judgment rendered against its employees

for their alleged wrongdoing (see McCarthv v Mario Enters .. Inc .. 163 A D3d 1135. 113 7 [3rd Dept

20 18]: Rossetti v Board of Educ., 277 AD2d 668, 670 [3d Dept 2000]) ..i Here. the veterinary

practice has admitted that ··it would be vicariously liable for the individually named defendants··

(Defendants· Memorandum of Law. at p. 4 ). The claims for negligent hiring. retention. training.

and supervision are therefore dismissed as against the veterinary practice.

~ In general. ··where an employee is acting within the scope of his o r her employment, the employer is liable under the theory of respondent superior. and the plaintiff may not proceed with a claim to recover damages for negligent hiring. retention. supervision, or training .. (McCarthy. 163 AD3d at 11 37 [internal quotatio n marks and citations omitted]). ··The ratio nale ... is that if the employee was not negligent, there is no basis for imposing liability o n the employer, and if the employee was neg ligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention o r the adequacy of the training" (id. [internal quotation marks and citation omitted]: see Segal v t. John's Univ .. 69 AD3d 702, 703 [2d Dept 20 10]).

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The 0\.\11er, however, has not joined in this admission. or has the owner conceded that

she would be liable as a shareholder-supervisor if the employees were ultimately found to have

engaged in professional misconduct (see BCL § 1505 [shareholder liability]; Education Law §

6706). 5 As such. the claims for negligent hiring, retention. training, and supervision (at least at

this time) constitute viable alternative theories of liability as against the owner (see McCarthy, 163

AD3d at 1137 [..allegations of icarious liability, though incompatible with a claim of negligent

hiring and supervision, do not require dismissal because a plaintiff may plead inconsistent theories

in the alternative··]: CPLR 3014; see also Connell v Hayden. 83 AD2d 30 [2d Dept 1981]

(discussing the liability of a supervisor for a co-employee·s torts]: Krystal G., 34 Misc 3d at 531).

Fifth Cause of Action (Negligent Infliction of Emotional Distress)

The defendants also seek to dismiss the fifth cause of action for negligent infliction of

emotional distress. The Court agrees that this is not a viable claim. everal cases highlight this.

In Jason v Parks, 224 AD2d 494, 495 (2d Dept 1996), the Second Department affirmed the

dismissal. for fai lure to state a cause of action, that part of a complaint seeking to recover damages

for emotional distress in a veterinary malpractice action. There. the court concluded that ..a pet

owner m ew York cannot recover damages for emotional distress caused by the negligent

destruction of a dog·' (&). Again, in Lewis v Di Donna, 294 AD2d 799,801 (3d Dept 2002), the

Third Department reiterated that "damages for the loss of a pet are limited to the value of the pet

at the time it died." More recently, in Leistner v Vanini, 208 AD3d 1625. 1626 (4th Dept 2022),

5 The complaint alleges that the veterinary practice is a professional corporation organized under the laws of this State. Education Law 6706 further provides that only domestic professional service corporations may be organized for the practice of veterinarian medicine. To the extent that Article 15 of the BCL applies. ection 1505 (a) (i) provides that a ..shareholder, employee or agent of a professional service corporation ... shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him o r by any person under his direct supervision and control while rendering professional services on behalf of such corporation:·

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the Fourth Department concluded that it is ··well senled·· that this State ··does not recognize a claim

for negligent infliction of emotional distress for the loss of animals"" (id.; see also Schrage v

Hatzlacha Cab Corp., 13 AD3d 150, 150 [ I st Dept 2004); Fowler v Ticonderoga, 131 AD2d 919,

921 [3d Dept 1987); 3 Y Jur Animals§§ 159, 162 [NY Jur 2d. West 2024)).

T hese cases make clear that, even if the law is evolving on the value of pets as the plaintiff

contends. it still does not recognize this cause of action for the loss of a dog. Accordingly. the

fifth cause of action is therefore dismissed.

Punitive Damages

Turning to the plaintiff"s demand for puniti\·e damages. the Court agrees that the factual

allegations. even if true. are insufficient to atisf) the elements required to recover puniti ve

damages (see Marinaccio v Town of Clarence. 20 Y3d 506. 511 [2013): weeney v McCormick.

159 AD2d 832. 833-834 [3d Dept 1990]; Warren·s egligence in ew York Courts§ 236.05

[Bender 2024) [discussing punitive damages against an employer]). onethelcss, given the nature

of this action (professional misconduct) and the stage of this proceeding (pre-discovery). the

dismissal of the demand for punitive damages claim would be --premature.. as the plaintiff ··has

not had an adequate opportunity to conduct discovery into issues within the knowledge of the

moving party.. (Marsh v Arnot Ogden Med. Ctr.. 91 AD3d I 070, I 072 [3d Dept 2012) [internal

quotation marks and citation omined]: see Gipe v DBT Xpress. LLC, 150 AD3d 1208. 1209- 1210

(2d Dept 2017): see also CPLR 3211 [d): Fleming v Jenna·s Forest Homeo'wners· Assn., Inc .. 228

AD3d 110 I [3d Dept 2024]).

Accordingly, the motion to dismiss the demand for puniti e damages is denied. without

prejudice to renew after the completion of discovery.

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Anomey"s Fees and Sanctions

The Court further denies the defendants· request for anomey·s fees and motion costs, as

well as the plaintiffs request for sanctions. either side has demonstrated their entitlement to

such relief.

It is therefore.

ORDERED, that the defendants· motion to dismiss is GRANTED in part and DENIED

in part: and it is further

ORDERED, that the second cause of action for lack of informed consent as against Dr.

Tillson: the third cause of action for negligence: the fourth cause of action for corporate negligence

as against Mandak Veterinary ervices; that part of the fourth cause of action against Dr. Smith

based on the doctrine of respondeat superior: and the fifth cause of action for negligent infliction

of emotional distress are all hereby DISM I SE O; and it is further

ORDERED. that the defendants· request for anomey·s fees and costs is hereby DENI ED;

and it is further

ORDERED. that any relief not expressly granted herein is hereby DENI ED. without

prejudice.

This constitutes the Decision and Order of the Court. o costs are awarded to any party.

The Court is uploading the original for filing and entry. The Court further directs the parties to

erve notice of entry of this Decision and Order in accordance with the Local Protocols for

Electronic Filing for aratoga County.

o-Ordered.

Dated: September 30, 2024 at Ballston pa. ew York HO . RICHARD A. KUPFERMA Justice Supreme Court Enter.

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Papers Considered: YSCEF Doc. umbers 1-29

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