Moser v. Spizzirro
| Decision Date | 04 November 1968 |
| Citation | 31 A.D.2d 537,295 N.Y.S.2d 188 |
| Parties | Edgar E. MOSER et al., Respondents, v. Louis SPIZZIRRO et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Victor R. Wolder, New York City, for plaintiffs-respondents.
O'Brien, Driscoll & Raftery, New York City, John Drew, New York City, of counsel, for defendant-appellant Forest Park Gardens, Inc.
Joseph A. Vassallo, Harrison, for defendant-appellant Louis Spizzirro.
Before BELDOCK, P.J., and CHRIST, BRENNAN, BENJAMIN and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Westchester County, dated December 13, 1967, modified, on the law and the facts, by striking out the second adjudicatory paragraph, except the provision awarding plaintiffs the costs of the action and directing execution therefor. As so modified, judgment affirmed, without costs.
In our opinion, the second cause of action, for fraudulent concealment, should have been dismissed for failure of proof. The mere silence of defendants, unaccompanied by some act or conduct which deceived plaintiffs, was not an actionable fraud in the absence of any confidential or fiduciary relationship (Perin v. Mardine Realty Co., 5 A.D.2d 685, 168 N.Y.S.2d 647, affd. 6 N.Y.2d 920, 190 N.Y.S.2d 995, 161 N.E.2d 210; cf. Foster v. Parker, 282 App.Div. 766, 767, 122 N.Y.S.2d 748, 751, affd. 2 N.Y.2d 848, 159 N.Y.S.2d 985, 140 N.E.2d 876; Amend v. Hurley, 293 N.Y. 587, 596, 59 N.E.2d 416, 420; Peoples' Bank of City of New York v. Bogart, 81 N.Y. 101, 107; Dambmann v. Schulting, 75 N.Y. 55, 61).
Nor do we think there was proof of negligence so gross that an intent to defraud could be reasonably implied. Negligent and faulty construction there may have been, but negligence and fraud are not synonymous or legally equivalent terms, although in a proper case negligence may be so gross as to take the place of a deliberate intention to work a fraud (cf. State St. Trust Co. v. Ernst, 278 N.Y. 104, 112, 15 N.E.2d 416, 419; Ultramares Corp. v. Touche, 255 N.Y. 170, 186, 174 N.E. 441, 447, 74 A.L.R. 1139; Reno v. Bull, 226 N.Y. 546, 124 N.E. 144; Staff v. Lido Dunes, Inc., 47 Misc.2d 322, 325, 262 N.Y.S.2d 544, 548).
We also agree with appellants that there were errors in the charge and in the trial court's refusal to charge the general rule as to silence in connection with the fraud cause of action. Since we are dismissing that cause of action and the errors had no effect on the jury's determination of the...
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In re Gas Reclamation, Inc. Securities Litigation
...there was fiduciary relationship or duty of disclosure arising from relationship of trust and confidence); Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, 188-89 (2d Dept.1968), aff'd mem., 25 N.Y.2d 941, 305 N.Y.S.2d 153, 252 N.E.2d 632 (1969), as well as the claim of breach of duty o......
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...does arise where defendants have engaged in `some act or conduct which deceived plaintiffs.'" Id. (quoting Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, 189 (2d Dep't 1968)). The gravamen of a common-law fraud claim is the fraudulent production of a false impression in the mind of an......
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...but in such a situation there must be a confidential or fiduciary relationship such as to create a duty to disclose (Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, affd. 25 N.Y.2d 941, 305 N.Y.S.2d 153, 252 N.E.2d 632; see Amend v. Hurley, 293 N.Y. 587, 59 N.E.2d 416). In the present ......
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