| McNamara v Droesch |
| 2008 NY Slip Op 01926 [49 AD3d 511] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Rosemary McNamara et al., Appellants, v KathleenDroesch et al., Respondents. |
—[*1] Vardaro & Helwig, LLP, Smithtown, N.Y. (Kelly Nagosky of counsel), forrespondents.
In an action, inter alia, to recover damages for fraud and medical malpractice, etc., theplaintiffs 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.
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 thoseflowing from an alleged medical malpractice cause of action, it must be dismissed (seeBellera v Handler, 284 AD2d 488, 490 [2001]). Here, the defendants established their primafacie 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 theinjuries 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 whichwas for summary judgment dismissing the cause of action alleging fraud. Ritter, J.P., Florio,Carni and Leventhal, JJ., concur.