Abraham v. Kosinski

• Decision Date: 10 June 1998
• Citation: Abraham v. Kosinski, 674 N.Y.S.2d 557, 251 A.D.2d 967 (N.Y. App. Div. 1998)
• Parties: , 1998 N.Y. Slip Op. 5688 David ABRAHAM, Respondent, v. Norbert KOSINSKI, D.P.M., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 557

674 N.Y.S.2d 557

251 A.D.2d 967, 1998 N.Y. Slip Op. 5688

David ABRAHAM, Respondent, v. Norbert KOSINSKI, D.P.M., Appellant, et al., Defendant.

Supreme Court, Appellate Division Fourth Department.

June 10, 1998.

O'Connor, O'Connor, Mayberger & First, P.C. by Justin Corcoran, Albany, for Defendant-Appellant.

Kowalczyk, Tolles, Deery & Johnston by Esther Johnston, Utica, for Plaintiff-Respondent.

Before GREEN, J.P., and PINE, HAYES, CALLAHAN and FALLON, JJ.

MEMORANDUM:

Supreme Court properly denied the motion to dismiss the second and third causes of action for failure to state a cause of action and to strike the claim for punitive damages. Those causes of action allege fraud and gross negligence or recklessness, respectively. Dismissal of a fraud cause of action is required "[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged medical malpractice cause of action" (Karlin v. IVF Am., 239 A.D.2d 560, 658 N.Y.S.2d 73). Here, however, the damages flowing from the alleged fraud include plaintiff's continuation of courses of treatment that were ineffective or may not have been pursued but for the alleged fraud and plaintiff's deprivation of courses of treatment that would have been pursued but for the fraudulently withheld information.

Because the third cause of action alleges administrative acts of gross negligence or recklessness " 'easily discernible by a jury on common knowledge' ", the court properly refused to dismiss that...