| DeGroof v Milhorat |
| 2012 NY Slip Op 03400 [95 AD3d 818] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Cynthia DeGroof, Respondent, v Thomas H. Milhorat,M.D., et al., Appellants. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner and DarylPaxson of counsel), for appellant Chanland Roonprapunt. Goldsmith, Ctorides, & Rodriguez, LLP, New York, N.Y. (Christina Ctorides and Lee S.Goldsmith of counsel), and Locks Law Firm PLLC, New York, N.Y. (Andrew P. Bell, GeneLocks, Steven P. Knowlton, and Janet C. Walsh of counsel), for respondent (one brieffiled).
In an action, inter alia, to recover damages for fraud and medical malpractice, the defendantsThomas H. Milhorat, Paolo A. Bolognese, John Xi Chen, L. Thierry Remy, Misao Nishikawa,Sol N. Mora, Rohit B. Verma, North Shore-Long Island Jewish Health System, Inc., ChiariInstitute, and Harvey Cushing Institutes of Neuroscience appeal, and the defendant ChanlandRoonprapunt separately appeals, as limited by their respective briefs, from (1) so much of anorder of the Supreme Court, Nassau County (Mahon, J.), entered November 9, 2010, as deniedtheir respective motions pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action,which alleged fraud, insofar as asserted against each of them, and (2) so much of an order of thesame court dated May 9, 2011, as denied their respective motions for leave to renew and rearguetheir respective motions pursuant to CPLR 3211 (a) (7) to dismiss the third cause of actioninsofar as asserted against each of them.
Ordered that the appeal from the order dated May 9, 2011, is dismissed; and it is further,
Ordered that the order entered November 9, 2010, is reversed, on the law, and the appellants'respective motions pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action insofar asasserted against each of them are granted; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately [*2]and filing separate briefs.
The appeal from so much of the order dated May 9, 2011, as denied those branches of thedefendants' respective motions which were for leave to reargue must be dismissed, as no appeallies from an order denying reargument (see Matter of Braver v Silberman, 90 AD3d 654 [2011]). Theappeal from so much of the order dated May 9, 2011, as denied those branches of the defendants'respective motions which were for leave to renew must be dismissed as academic in light of ourdetermination on the appeal from the order entered November 9, 2010.
The plaintiff commenced this action asserting causes of action to recover damages for, interalia, medical malpractice, lack of informed consent, and fraud. The gravamen of the cause ofaction alleging fraud is that the plaintiff was induced to undergo unnecessary spinal corddetethering surgery based on the defendants' knowingly false representations. Due to this allegedfraudulent conduct, the plaintiff claimed that she sustained serious physical, emotional, andfinancial injuries.
The Supreme Court erred in denying the defendants' respective motions pursuant to CPLR3211 (a) (7) to dismiss the third cause of action, which alleged fraud, insofar as asserted againsteach of them since the injuries arising from the alleged fraud are no different from those resultingfrom the alleged lack of informed consent and malpractice (see Simcuski v Saeli, 44NY2d 442 [1978]; McNamara vDroesch, 49 AD3d 511 [2008]; Karlin v IVF Am., 239 AD2d 560 [1997],mod on other grounds 93 NY2d 282 [1999]; Luciano v Levine, 232 AD2d 378[1996]; Spinosa v Weinstein, 168 AD2d 32 [1991]).
In light of our determination, the remaining contention of the defendant ChanlandRoonprapunt has been rendered academic. Skelos, J.P., Dickerson, Leventhal and Cohen, JJ.,concur.