CRIMINAL LAW/EVIDENCE

Warrantless Search of Defendant's Jacket Not Justified--Defendant Was Handcuffed Inside a Police Car and Jacket Was Outside the Car

The First Department, in a full-fledged opinion by Justice Richter, over a dissent, determined that the warrantless search of defendant's jacket could not be justified.  The defendant was handcuffed and sitting in the back of a police car when the jacket, which was on the trunk of the police car, was searched:

"[A]ll warrantless searches presumptively are unreasonable per se," and, "[w]here a warrant has not been obtained, it is the People who have the burden of overcoming" this presumption of unreasonableness ... . As the Court of Appeals recently reiterated in Jimenez (22 NY3d at 717), the People must satisfy two separate requirements to justify a warrantless search of a container incident to arrest. "The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest" (Jimenez, 22 NY3d at 721 [internal quotation marks omitted]...). The second requires the People to demonstrate the presence of exigent circumstances (Jimenez, 22 NY3d at 722). The Court of Appeals has recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer, and the protection of evidence from destruction or concealment ... .  * * *

Here, the jacket was unquestionably outside defendant's grabbable area at the time of the search, which even the dissent acknowledges. Defendant was sitting handcuffed inside a police car, the jacket was outside lying on the vehicle's trunk, and numerous officers were on the scene. Thus, the jacket had been reduced to the exclusive control of the police and there was no reasonable possibility that defendant could have reached it... .

Further, the People failed to establish the requisite exigent circumstances justifying a warrantless search of the jacket. Although defendant had previously struggled with police, five to six additional officers had arrived on the scene and defendant was subdued and placed in the police car. Thus, the scene at the time of the search was police-controlled ... . People v Morales, 2015 NY Slip Op 01190, 1st Dept 2-10-15

CRIMINAL LAW/EVIDENCE

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Police May Direct Occupants to Step Out of the Car After a Vehicle-Stop

In affirming the denial of a motion to suppress evidence seized after a vehicle stop the Second Department determined the police properly requested that the occupants step out of the car:

"In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car" ... . People v Mitchell, 2015 NY Slip Op 01292, 2nd Dept 2-11-15

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CRIMINAL LAW/ATTORNEYS

Defendant's Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel---Criteria for Valid Waiver Explained

The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:

Defendant's "conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed," and he arguably thereby forfeited his right to be present at the hearing ... . Nevertheless, he did not validly waive his right to counsel. "For such a waiver to be effective, the trial court must be satisfied that," among other things, "it has been made competently, intelligently and voluntarily" ... . Thus, the court must undertake a "searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel" ... . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel's role, and there is no indication on the record before us that defendant "acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel's inability to participate" ... . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court "did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path" ... . People v Middlemiss, 2015 NY Slip Op 01208, 3rd Dept 2-11-15

CRIMINAL LAW/APPEALS

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Appeal Waiver and Guilty Plea Fatally Flawed

The Third Department determined defendant's waiver of appeal was ineffective and his guilty plea was not knowing, voluntary and intelligent:

A review of the record supports defendant's contention that his guilty plea and waiver of appeal were not knowing, voluntary and intelligent. As a threshold matter, the terms under which defendant was entering a guilty plea were not clearly stated prior to the plea allocution, County Court misstated the minimum term of postrelease supervision (see Penal Law § 70.45 [2] [f]), and defendant was not advised of the maximum potential sentence ... . * * * ,,,[T]he record does not reflect that defendant was accurately advised, prior to the plea allocution, of his rights, options or the terms of his plea.

Moreover, "[w]hen a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses" ... and the court need not "specifically enumerate all of the rights" implicated ..., here, the only constitutional right referred to was the right to a jury trial. We cannot conclude that defendant's guilty plea was knowing, voluntary and intelligent as there was neither "an affirmative showing on the record that defendant waived his constitutional rights" ..., nor any indication that he "consulted with his attorney about the constitutional consequences of a guilty plea" ... .

We also note, with regard to the oral appeal waiver, that County Court did not adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" but, rather, improperly lumped those rights together ... . Although the record contains a written appeal waiver dated the same day as the plea proceedings, there was "no attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ... . People v Vences, 2015 NY Slip Op 01196, 3rd Dept 2-11-15

CRIMINAL LAW/EVIDENCE

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Prosecutorial Misconduct Warranted a New Trial

The Fourth Department reversed defendant's conviction and ordered a new trial because of the prosecutor's misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

The prosecutor began her summation by improperly characterizing the People's case as "the truth" and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant ... .

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant ... . The prosecutor asked the jury "to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I'm bugging, but I tried to catch him, that's why I left,' are examples of the ring of truth." Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: "I submit to you the (complainant's statements) are truthful." The prosecutor also bolstered the complainant's credibility by making herself an unsworn witness in the case ... . In addressing inconsistencies between the complainant's testimony and his earlier statement to the police, the prosecutor argued that the complainant made only "[o]ne inconsistent statement, from talking to the police and talking to me" (emphasis added). The prosecutor's remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record ... .

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant's "bravery" in calling the police and testifying against defendant ... . The prosecutor told the jurors that it was "not an easy decision" for complainant to call the police, and asked them to "hang [their] hat on . . . [the complainant]'s bravery by coming in front of you." The prosecutor argued that the neighborhood where the crime occurred and where the complainant's family worked "is an anti-police atmosphere." After defense counsel's objection to that comment was sustained, the prosecutor protested that "it was a statement in evidence" when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not "to go into what this area is like." The prosecutor nonetheless continued her summation by asking the jurors to "[u]se [their] common sense to think about whether or not this happened and why there's no other witnesses" (emphasis added). The prosecutor argued that the complainant "is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day." She continued: "So please tell [the complainant] he did the right thing by calling 911 and telling them one man's word is enough. Tell them that he is brave to report this." The prosecutor ended her summation by urging the jury to "tell [the complainant] that his truthfulness is enough to convict the defendant" by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

CRIMINAL LAW/APPEALS/ATTORNEYS

Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including "the right to appellate counsel of defendant's choice and the right to seek appointment of counsel upon proof of indigency" ... . "The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State" ... and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People ... . Since there is no such record evidence in this case, we agree with the defendant's contention that he was deprived of his constitutional right to counsel on the People's appeal to this Court ... . Accordingly, we assign counsel to represent the defendant on the People's appeal ..., and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

DEFAMATION

Comments Made by Dean and Assistant Dean in Their Professional Capacities Protected by a Qualified Privilege

The Second Department determined comments made about plaintiff-coach by the dean and assistant dean of the school where plaintiff worked were protected by a qualified privilege:

"Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his interest is concerned" ... . The defendants demonstrated that the statements at issue made by [defendants] in their official capacities as Dean and Assistant Dean of the School, respectively, and that the persons to whom they made the statements, had corresponding interests in the subject matter of the statements ... .  Melious v Besignano, 2015 NY Slip Op 01247, 2nd Dept 2-11-15

DEFAMATION/MUNICIPAL LAW/IMMUNITY/PRIVILEGE/EMPLOYMENT LAW

Town Board and Police Commission Members Entitled to Immunity and Qualified Privilege Re: Defamation Causes of Action---Criteria Described/Power to Terminate Probationary Police Officer Described

The Fourth Department determined statements attributed to members of the town board and police commission with respect to the reasons for plaintiff's termination as a probationary police officer were protected by governmental immunity and qualified privilege (explaining the relevant criteria).  In addition, the court explained the power to terminate a probationary police officer:

There is complete immunity from liability for defamation for " an official [who] is a principal executive of State or local government who is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension' . . . , with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties" ... . Here, the Town Board has the statutory authority to "make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and of the members thereof" (Town Law § 154) and, as members of the Police Commission, [defendants] were delegated "all the powers relative to police matters conferred upon the town board" (§ 150 [2]). We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because "members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties" ..., and "[t]he privilege of absolute immunity . . . extends to those of subordinate rank who exercise delegated powers' " ... . ...

A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest' " ... . Here, defendants submitted evidence that, at the time of the alleged slanderous communications, Ulinski was a member of the Police Commission and, therefore, had an interest in plaintiff's performance as a probationary police officer, and that Ulinski made the communications to persons with a corresponding interest in plaintiff's performance, namely to a member of the Town Board, and to the president of the union that represented plaintiff ... . We further conclude that plaintiffs "failed to raise a triable issue of fact whether the statements were motivated solely by malice" ... . * * *

As a probationary police officer, plaintiff could be " dismissed for almost any reason, or for no reason at all[,]' . . . [and he] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason" ... . Fiore v Town of Whitestown, 2015 NY Slip Op 01361, 4th Dept 2-13-15

INSURANCE LAW/LABOR LAW-CONSTRUCTION LAW

Labor Law Definition of "General Contractor" Applies In Subrogation Action

The Second Department, over a dissent, determined that the Style defendants, whose role in a building project was limited to procuring the building permit and some minor carpentry, were not the general contractor for the project and were therefore entitled to summary judgment.  After paying the fire-related claim, plaintiff insurance company brought a subrogation action against the Style defendants (as the alleged general contractor). In finding the Style defendants were not the general contractor, the Second Department used the definition of "general contractor" applied under the Labor Law:

The Style defendants established, prima facie, that they were not the general contractor on the ... renovation project through the submission of evidence showing that they did not undertake general contractor duties such as supervising, hiring, or paying contractors ... . The evidence submitted in support of the Style defendants' motion demonstrated, prima facie, that the Berensons hired the Baruch defendants as the general contractor on the project, and that the Baruch defendants undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors ... . The evidence demonstrated that the only function the Style defendants performed in connection with the renovation project was obtaining the work permit and, at most, performing some minor carpentry and molding work at the beginning of the project ... . * * *

.... [T]he rule enunciated in [the] Labor Law cases, which is based on the basic definition of a general contractor as one who, for instance, coordinates and supervises the work and hires and pays subcontractors ... , applies equally to this subrogation action. To ignore our Labor Law precedent in this action would, in effect, create a different definition of a general contractor in the subrogation/property damage context, one that would confer general contractor status on an entity simply by virtue of it being listed as the contractor on a work permit. There is no persuasive reason for having two separate definitions of a general contractor, one for the Labor Law/personal injury context and another for the subrogation/property damage context... . Utica Mut Ins Co v Style Mgt Assoc Corp, 2015 NY Slip Op 01266, 2nd Dept 2-11-15

LABOR LAW-CONSTRUCTION LAW

Principles of Owner/Contractor's Liability Pursuant to Labor Law 241 (6) Succinctly Explained---Plaintiff's Freedom from Comparative Fault Must Be Demonstrated---Absence of Actual or Constructive Notice on the Owner/Contractor's Part Is Not a Defense

The Second Department determined summary judgment was properly granted to plaintiff on his Labor Law 241 (6) cause of action based upon the presence of snow and ice on the work site.  Plaintiff was directed to carry a piece of plywood over an area covered with ice and snow.  He fell and was injured.  The court explained the relevant analytical criteria:

As a predicate for liability pursuant to Labor Law § 241(6), the plaintiff alleged that he was injured as a result of a snow and ice condition that was permitted to remain on the worksite in violation of 12 NYCRR 23-1.7(d). That section of the Industrial Code unequivocally directs that ice and snow "shall be removed" from worksites so as "to provide safe footing" (12 NYCRR 23-1.7[d]...). The duty imposed is nondelegable ... . Indeed, here, the Construction Management Agreement ... provided that [the contractor] "shall remove snow or ice from the Project Site." The plaintiff's testimony at his deposition and his averments in his affidavit in support of his motion established that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him. The plaintiff also demonstrated his freedom from comparative fault, as he was following his employer's directives, using the equipment provided, and wearing proper shoes as required by his employer. The plaintiff thereby demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241(6) cause of action ... . ... Moreover, "[s]ince an owner or general contractor's vicarious liability under section 241 (6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241 (6) liability" ... . Reynoso v Bovis Lend Lease LMB Inc, 2015 NY Slip Op 01256, 2nd Dept 2-11-15

LABOR LAW-CONSTRUCTION LAW/NEGLIGENCE

One- and Two- Family Homeowners' Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner's Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action

After finding that the Labor Law 240(1) and 246(1) causes of action were properly dismissed (one- and two-family homeowner exemption), the Second Department determined the summary judgment should not have been granted to the homeowner on the Labor Law 200 and common-law negligence causes of action.  The motion for summary judgment failed to address the allegation the owner created or had notice of the dangerous condition:

The plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the "means and methods" of construction. Accordingly, in order to be entitled to judgment as a matter of law dismissing those causes of action, Elias was required to address both theories ... . Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff's papers submitted in opposition... . Pineda v Elias, 2015 NY Slip Op 01254, 2nd Dept 2-11-15

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LABOR LAW-CONSTRUCTION LAW/NEGLIGENCE

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Labor Law 200 and Common Law Negligence Causes of Action Against Owner Properly Dismissed---Owner Did Not Exercise Supervisory Control Over Plaintiff's Work

The Fourth Department determined the owner was entitled to summary judgment on the Labor Law 200 and common law negligence causes of action based upon evidence the owner did not exercise any supervisory control over plaintiff's work:

It is well settled that, "[w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" ... . Here, defendants met their burden on the motion of establishing that they did not direct or control plaintiff's work .... "There is no evidence that defendant[s] gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200" or under the common law.. . Matter of Mitchell v NRG Endergy Inc, 2015 NY Slip Op 01367, 4th Dept 2-13-15

MUNICIPAL LAW/CORPORATION LAW

"Local Authority," Within the Meaning of the Public Authorities Law, Defined

The Fourth Department determined petitioner, Operation Oswego County, was a "local authority" subject to reporting and oversight requirements of respondent, the New York Authorities Budget Office.  The court defined what a "local authority" is:

A "local authority" under the Public Authorities Law includes "a not-for-profit corporation affiliated with, sponsored by, or created by a county, city, town or village government" (§ 2 [2] [b]). Petitioner is a not-for-profit corporation that acts as a local development corporation by establishing and implementing economic development strategies for Oswego County (County). We agree with respondent that petitioner is a local authority inasmuch as it is affiliated with and/or sponsored by the County ... . The record establishes that the County regularly gives grants to petitioner, which comprise the majority of its budget. ...[T]he term "sponsor" means, inter alia, " a person or an organization that pays for or plans and carries out a project or activity' " (id. at 1404, quoting Merriam-Webster On-line Dictionary [emphasis added]). The County has also given interest-free loans to petitioner. Furthermore, a County official serves as a voting member of petitioner's board, and several County officials serve as ex-officio, non-voting members of petitioner's board. Considering the totality of the circumstances ..., we conclude that petitioner is a local authority as defined in the Public Authorities Law. Matter of Operation Oswego County Inc v State of New York Auths Budget Off, 2015 NY Slip Op 01358, 4th Dept 2-13-15

MUNICIPAL LAW

The Procedure for Holding an Executive Session Does Not Apply to Proceedings Which Are Exempt from the Open Meetings Law

The Fourth Department determined that the town board need not follow the procedure in the Public Officers Law (Open Meetings Law) for holding an executive session (where the public is excluded) for matters which are exempt from the open meetings requirement. In this case a consultation between the town board and town counsel was exempt from the open meetings requirement pursuant to a provision of the Public Officers Law.  Therefore, the town board could not be faulted for keeping that consultation private without following the formal procedure for holding an executive session:

It is well settled that "[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [section 105]" (Public Officers Law § 103 [a]...). While an executive session may be called to discuss, inter alia, "proposed, pending or current litigation" (§ 105 [1] [d]), the public body may do so only upon a majority vote of its membership and after "identifying the general area or areas of the subject or subjects to be considered" (§ 105 [1]). There is no dispute that section 105 (1) does not extend to communications between a town board and its counsel, but section 108 (3) provides in relevant part that "[n]othing contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to . . . any matter made confidential by federal or state law." "[S]ince communications made pursuant to an attorney-client relationship are considered confidential under the [CPLR] . . . , communications between a . . . board . . . and its counsel, in which counsel advises the board of the legal issues involved in the determination of a[n] . . . application, are exempt from the provisions of the Open Meetings Law" ... . "When an exemption [under section 108] applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by § 105 (1) that relates to entry into an executive session" ... . Matter of Brown v Feehan, 2015 NY Slip Op 01339, 4th Dept 2-13-15

NEGLIGENCE

Criteria for Holding Property Owner Liable for an Assault on the Owner's Property Succinctly Described

In affirming the dismissal of the complaint against the property owner which alleged liability for an assault which occurred during a party on the property, the Second Department explained the criteria for such liability.  Here there was no showing that the assault was foreseeable or that the property owner had the opportunity to control the conduct of the assailant:

"A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" ... . "This duty arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so" ... . Morris v Chase Bank, 2015 NY Slip Op 01249, 2nd Dept 2-11-15

NEGLIGENCE/DENTAL MALPRACTICE/ABSENCE OF CONSENT/BATTERY/CONSUMER LAW

Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation---Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action---Some of the Criteria Explained

The Fourth Department determined the cause of action for battery was not duplicative of the cause of action for dental malpractice because it was based upon the allegations consent to the procedure was completely absent or was fraudulently induced.  In addition, there were questions of fact re: the deceptive business practices cause of action:

...[T]he cause of action asserting the complete absence of consent and/or fraudulently induced consent for treatment is properly treated as one for battery rather than for dental malpractice, and it is not duplicative of the dental malpractice cause of action ... . "It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all' " ... . The court properly denied that part of the ... defendants' motion with respect to the battery cause of action, inasmuch as they failed to meet their initial burden of establishing that they "did not intentionally engage in offensive bodily contact without plaintiff's consent"... . ...

A cause of action for deceptive business practices under section 349 "requires proof that the defendant engaged in consumer-oriented conduct that was materially deceptive or misleading, causing injury" ... . Even assuming, arguendo, that the ... defendants met their initial burden by establishing that the underlying transaction was private in nature and the allegedly deceptive acts were not aimed at the public at large ..., we conclude that plaintiff's submissions raised issues of fact concerning whether the ... defendants engaged in a scheme to place profits before patient care, which allegedly included fraudulent practices that impacted consumers at large beyond a particular dentist's treatment of an individual patient ... . Matter of Smiles, 2015 NY Slip Op 01362, 4th Dept 2-13-15

NEGLIGENCE/DENTAL MALPRACTICE/EMPLOYMENT LAW

Criteria for Determining "Employee" Versus "Independent Contractor" Briefly Described/Elements of Cause of Action Based Upon a Lack of Informed Consent Explained

After finding there was a question of fact whether the dentist (Weiss) who treated plaintiff was an employee of defendant-Toothsavers or an independent contractor, the Second Department determined there was a question of fact about whether plaintiff gave informed consent to the procedure:

"The Toothsavers defendants contend that because Weiss was an independent contractor, not an employee, they cannot be vicariously liable for Weiss's malpractice. The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" ... . "The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced or, more importantly, the means used to achieve the results" ... . ...

"To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" ... . Chan v Toothsavers Dental Care Inc, 2015 NY Slip Op 01236, 2nd Dept 2-11-15