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McNamara v. Droesch

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 2008
49 A.D.3d 511 (N.Y. App. Div. 2008)

Opinion

No. 2006-10776.

March 4, 2008.

In an action, inter alia, to recover damages for fraud and medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 8, 2006, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud.

Lawrence Levine, New York, N.Y., for appellants.

Vardaro Helwig, LLP, Smithtown, N.Y. (Kelly Nagosky of counsel), for respondents.

Vardaro Helwig, LLP, Smithtown, N.Y. (Kelly Nagosky of counsel), for respondents.

Before: Ritter, J.P., Florio, Carni and Leventhal, JJ.


Ordered that the order is affirmed insofar as appealed from, with costs.

Where a fraud claim gives rise to damages which are not separate and distinct from those flowing from an alleged medical malpractice cause of action, it must be dismissed ( see Bellera v Handler, 284 AD2d 488, 490). Here, the defendants established their prima facie entitlement to judgment as a matter of law with respect to the cause of action alleging fraud, and the plaintiffs failed to raise a triable issue of fact. The plaintiffs failed to demonstrate that the injuries arising from the alleged fraud differed from those caused by the alleged malpractice. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud.


Summaries of

McNamara v. Droesch

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 2008
49 A.D.3d 511 (N.Y. App. Div. 2008)
Case details for

McNamara v. Droesch

Case Details

Full title:ROSEMARY McNAMARA et al., Appellants, v. KATHLEEN DROESCH et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 4, 2008

Citations

49 A.D.3d 511 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 1926
855 N.Y.S.2d 555

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