| Gale v Animal Med. Ctr. |
| 2013 NY Slip Op 05043 [108 AD3d 497] |
| July 3, 2013 |
| Appellate Division, Second Department |
| Shelley Gale, Appellant, v Animal Medical Centeret al., Respondents. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Alex M. Temple of counsel), forrespondents.
In an action, inter alia, to recover damages for veterinary malpractice, grossnegligence, and fraud, the plaintiff appeals, as limited by her brief, from so much of anorder of the Supreme Court, Queens County (Taylor, J.), dated February 1, 2012, as, ineffect, upon reargument, adhered to so much of the original determination in an order ofthe same court dated September 8, 2011, as granted those branches of the defendants'renewed motion which were, in effect, pursuant to CPLR 3211 (a) (7) to dismiss thesecond and fifth causes of action.
Ordered that the order dated February 1, 2012, is modified, on the law, by deletingthe provision thereof, in effect, upon reargument, adhering to so much of the originaldetermination in the order dated September 8, 2011, as granted that branch of thedefendants' renewed motion which was, in effect, pursuant to CPLR 3211 (a) (7) todismiss the fifth cause of action, and substituting therefor a provision vacating thatportion of the original determination and, thereupon, denying that branch of thedefendants' renewed motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The plaintiff commenced this action, inter alia, to recover damages for veterinarymalpractice, gross negligence, and fraud. The plaintiff alleged that on June 22, 2009, shebrought her cat to the defendant Animal Medical Center because the cat was havingrespiratory problems. On that date, diagnostic testing was performed which revealed thepresence of a pleural effusion and a mass in the cat's chest. On June 24, 2009, theplaintiff allegedly consulted with a veterinary oncologist, who recommended that a CTscan be performed, with the possibility of surgery depending on the CT scan results. OnJune 25, 2009, the plaintiff returned to the Animal Medical Center with her cat, and theCT scan was performed. The plaintiff alleged that she consented to the cat undergoing athoracotomy based upon certain representations made to her about the CT scan results bythe defendants Kovak McClaran and Anthony Fischetti. Shortly after the procedure, thecat's condition worsened and the cat allegedly was euthanized without the plaintiff'sconsent. The plaintiff alleged that she later learned that the radiologist, Fischetti, had notread the CT scan results prior to the operation, and that McClaran and Fischettideliberately misled her about this fact to obtain her consent for a "contraindicated" and"unnecessary" procedure.[*2]
In an order dated September 8, 2011, theSupreme Court, inter alia, granted those branches of the defendants' renewed motionwhich were, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the second and fifthcauses of action, which sought damages for gross negligence and fraud, respectively. InNovember 2011, the plaintiff moved for leave to reargue her opposition to statedportions of the defendants' renewed motion. In an order dated February 1, 2012, theSupreme Court, in effect, upon reargument, adhered to the original determination in theorder dated September 8, 2011.
"In considering a motion to dismiss for failure to state a cause of action pursuant toCPLR 3211 (a) (7), the sole criterion is whether from the complaint's 'four cornersfactual allegations are discerned which taken together manifest any cause of actioncognizable at law' " (Nasca vSgro, 101 AD3d 963, 964 [2012], quoting Guggenheimer v Ginzburg,43 NY2d 268, 275 [1977]). "[T]he court must afford the complaint a liberal construction,'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit withinany cognizable legal theory' " (Woss, LLC v 218 Eckford, LLC, 102 AD3d 860, 860[2013] [citation omitted], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Contrary to the plaintiff's contention, the Supreme Court properly, in effect, uponreargument, adhered to so much of the original determination in the order datedSeptember 8, 2011, as granted that branch of the defendants' renewed motion which was,in effect, pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action, whichsought damages for gross negligence. Since the gross negligence cause of action arosefrom the same facts as the veterinary malpractice and fraud causes of action, the grossnegligence cause of action is duplicative and, thus, cannot be sustained (see Abrahamv Kosinski, 305 AD2d 1091, 1092 [2003]; Mecca v Shang, 258 AD2d 569,570 [1999]).
However, the Supreme Court should have, upon reargument, vacated so much of theoriginal determination in the order dated September 8, 2011, as granted that branch of thedefendants' renewed motion which was, in effect, pursuant to CPLR 3211 (a) (7) todismiss the fifth cause of action which sought damages for fraud. Affording thecomplaint a liberal construction, accepting the facts alleged in the complaint as true, andaccording the plaintiff the benefit of every possible favorable inference (see Woss, LLC v 218 Eckford,LLC, 102 AD3d 860 [2013]), the complaint, as amplified by the supplementalbill of particulars (see Zorn vGilbert, 60 AD3d 850 [2009]), alleged, inter alia, that the defendants knowinglymade false statements to the plaintiff concerning the results of the CT scan to induce herto consent to a "contraindicated" surgical procedure for her cat, which resulted in thecat's death. Accordingly, the plaintiff sufficiently stated a cause of action to recoverdamages for fraud to the extent that cause of action was based on allegations concerningthe CT scan.
The plaintiff's remaining contentions are either without merit or not properly beforethis Court. Eng, P.J., Balkin, Roman and Miller, JJ., concur.
Motion by the respondents, inter alia, to dismiss an appeal from an order of theSupreme Court, Queens County, dated February 1, 2012, on the ground that no appeallies from an order denying reargument. By decision and order on motion of this Courtdated October 23, 2012, [*3]the branch of the motionwhich was to dismiss the appeal on the ground that no appeal lies from an order denyingreargument was held in abeyance and referred to the panel of Justices hearing the appealfor determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to dismiss the appeal on the groundthat no appeal lies from an order denying reargument is denied. Eng, P.J., Balkin, Romanand Miller, JJ., concur.