SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1323 

CA 14-00896 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

IN THE MATTER OF SMALL SMILES LITIGATION

--------------------------------------------

KELLY VARANO, AS PARENT AND NATURAL GUARDIAN 

OF INFANT JEREMY BOHN, PLAINTIFF-RESPONDENT, 

 

V MEMORANDUM AND ORDER

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET 

HEALTH MANAGEMENT, LLC, FORBA, N.Y., LLC, 

FORBA, LLC, NOW KNOWN AS LICSAC, LLC, FORBA 

NY, LLC, NOW KNOWN AS LICSAC NY, LLC, DD 

MARKETING, INC., DEROSE MANAGEMENT, LLC, SMALL 

SMILES DENTISTRY OF SYRACUSE, LLC, DANIEL E. 

DEROSE, MICHAEL A. DEROSE, D.D.S., EDWARD J. 

DEROSE, D.D.S., ADOLPH R. PADULA, D.D.S., 

WILLIAM A. MUELLER, D.D.S., MICHAEL W. ROUMPH, 

NAVEED AMAN, D.D.S., KOURY BONDS, D.D.S., AND 

YAQOOB KAHN, D.D.S., DEFENDANTS-APPELLANTS.

(APPEAL NO. 2.) 

 

GOLDBERG SEGALLA LLP, ALBANY (MATTHEW S. LERNER OF COUNSEL), AND

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE, FOR

DEFENDANTS-APPELLANTS FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET 

HEALTH MANAGEMENT, LLC, FORBA, N.Y., LLC, AND SMALL SMILES DENTISTRY

OF SYRACUSE, LLC. 

O’CONNOR, O’CONNOR, BRESEE & FIRST, P.C., ALBANY (LIA B. MITCHELL OF

COUNSEL), FOR DEFENDANTS-APPELLANTS FORBA, LLC, NOW KNOWN AS LICSAC,

LLC, FORBA NY, LLC, NOW KNOWN AS LICSAC NY, LLC, DD MARKETING, INC.,

DEROSE MANAGEMENT, LLC, DANIEL E. DEROSE, MICHAEL A. DEROSE, D.D.S.,

EDWARD J. DEROSE, D.D.S., ADOLPH R. PADULA, D.D.S., WILLIAM A.

MUELLER, D.D.S., AND MICHAEL W. ROUMPH.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, ALBANY (MELISSA A.

MURPHY-PETROS OF COUNSEL), FOR DEFENDANTS-APPELLANTS NAVEED AMAN,

D.D.S., KOURY BONDS, D.D.S., AND YAQOOB KHAN, D.D.S. 

POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeals from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered March 21, 2014. The order granted

the motions of defendants for leave to renew and, upon renewal,

adhered to the order entered December 3, 2013 granting the motion of
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CA 14-00896 

plaintiff for a new trial. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs and the matter is

remitted to Supreme Court, Onondaga County, for further proceedings in

accordance with the following Memorandum: Plaintiff commenced this

action seeking damages for injuries sustained by her infant son as a

result of, inter alia, allegedly unnecessary dental treatment,

performed at a “Small Smiles” dental clinic in Syracuse, New York,

allegedly without informed consent or with fraudulently obtained

consent. This action was coordinated for purposes of discovery with

two other actions in Supreme Court, Onondaga County. Although there

are four groups of defendants involved in the three actions (Matter of

Small Smiles Litig., 109 AD3d 1212, 1212-1213), the only groups

relevant to the instant appeal are defendants-appellants (defendants). 

Supreme Court granted plaintiff’s motion pursuant to CPLR 4404 (a) to

set aside the verdict on the ground of improper outside influence on

the jury during trial, vacated the judgment and ordered a new trial

(Varano v FORBA Holdings, LLC, 42 Misc 3d 303) and, by the order on

appeal, the court granted defendants’ motions pursuant to CPLR 2221

(e) for leave to renew and, upon renewal, adhered to its original

determination (Varano v FORBA Holdings, LLC, 42 Misc 3d 1232[A], 2014

NY Slip Op 50312[U]). We reverse.

It is well settled that the decision whether to grant a motion

for a new trial pursuant to CPLR 4404 (a) is committed to the trial

court’s discretion and will not be disturbed absent an abuse of that

discretion (see Singer v Krul, 90 AD3d 1378, 1379, lv dismissed 18

NY3d 953; see generally Micallef v Miehle Co., Div. of Miehle-Goss

Dexter, 39 NY2d 376, 381). Here, we agree with defendants that the

court abused its discretion in the manner in which it investigated and

determined the issue whether there had been improper outside influence

on the jury that “was such as would be likely . . . to influence the

verdict” (Schrader v Joseph H. Gertner, Jr., Inc., 282 App Div 1064,

1064 [internal quotation marks omitted]; see Payne v Burke, 236 App

Div 527, 528-529). Shortly after the trial had concluded and the jury

was discharged, the court received notice of an allegation from one

juror that a person attending the trial had been “stalking” the

impaneled jurors on lunch breaks and during other recess periods. The

juror described the individual’s behavior as “creepy.” It was later

learned that the individual was a representative of an insurance

company monitoring the progress of the trial because it insured many

of the defendants. As a result of the “stalking” allegation, the

court conducted its own investigation and ultimately set aside the

verdict, which had been entirely in defendants’ favor, and ordered a

new trial. We agree with defendants that the court abused its

discretion in conducting an in camera interview of the complaining

juror without notifying counsel, without seeking counsels’ consent to

that procedure (see generally United States v Bufalino, 576 F2d 446,

451, cert denied 439 US 928), and without providing counsel with an

opportunity to be heard or to participate, even in some restricted

manner, in the interview of the juror (see generally Remmer v United

States, 347 US 227, 229-230). Further, the court limited its

investigation to one juror, and we conclude that the court abused its
-3- 1323 

CA 14-00896 

discretion in failing to conduct a more expanded investigation,

including, at a minimum, conducting an interview of all of the jurors

(see generally Kraemer v Zimmerman, 249 AD2d 159, 160). Lastly, the

court abused its discretion in prohibiting counsel from contacting any

jurors until after plaintiff’s motion to set aside the verdict was

decided. This unnecessary prohibition essentially precluded

defendants from obtaining and submitting any meaningful opposition to

plaintiff’s motion, the practical result being that the granting of

plaintiff’s motion was a foregone conclusion. 

As a result of the limited scope of the investigation made into

the alleged “stalking” of the jurors during trial, we cannot determine

on this record if any such outside influence “ ‘likely . . .

influence[d] the verdict’ ” (Schrader, 282 App Div at 1065). We

therefore reverse the order and remit the matter to Supreme Court to

decide plaintiff’s motion following an evidentiary hearing on that

issue. 

Entered: February 6, 2015 Frances E. Cafarell

Clerk of the Court