Ross v. Gidwani

• Decision Date: 29 January 2008
• Docket Number: 2007-03583.,2007-03581.
• Citation: 850 N.Y.S.2d 567,2008 NY Slip Op 00675,47 A.D.3d 912
• Parties: EILEEN ROSS, Respondent, v. UMESH GIDWANI et al., Defendants, and VIDYA PATEL, Appellant.
• Court: New York Supreme Court — Appellate Division

47 A.D.3d 912

850 N.Y.S.2d 567

2008 NY Slip Op 00675

EILEEN ROSS, Respondent, v. UMESH GIDWANI et al., Defendants, and VIDYA PATEL, Appellant.

2007-03581.

2007-03583.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided January 29, 2008.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Vidya Patel appeals from (1) an order of the Supreme Court, Queens County (Taylor, J.), dated September 25, 2006, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her, and (2) an order of the same court entered March 14, 2007, which denied her motion for leave to reargue and granted the plaintiff's cross motion for leave to amend the complaint to add a cause of action to recover damages for intentional infliction of emotional distress.

Ordered that the appeal from so much of the order entered March 14, 2007, as denied the motion of the defendant Vidya Patel for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Jowers v People, 13 AD3d 414 [2004]; Nam Jin Chung v M & S Deli, 293 AD2d 725 [2002]; Frisenda v X Large Enters., 280 AD2d 514, 515 [2001]); and it is further,

Ordered that the order dated September 25, 2006 is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Vidya Patel which was for summary judgment dismissing the fourth cause of action insofar as asserted against her and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed; and it is further,

Ordered that the order entered March 14, 2007 is reversed insofar as reviewed, on the law and in the exercise of discretion, and the plaintiff's cross motion for leave to amend the complaint to add a cause of action to recover damages for intentional infliction of emotional distress is denied; and it is further,

Ordered that the one bill of costs is awarded to the defendant Vidya Patel.

Contrary to the plaintiff's argument, the Supreme Court should have granted that branch of the motion of the defendant Vidya Patel which was for summary judgment dismissing the fourth cause of action insofar as asserted against her, seeking to recover damages for fraud. That cause of action alleges that Patel, although cognizant that the plaintiff, who is blind, wanted the autopsy of her deceased father to be conducted at the office of the New York City Medical Examiner (hereinafter the Medical Examiner), nevertheless induced her to sign an authorization permitting the autopsy to be conducted at Mount Sinai Hospital by misrepresenting the content of the authorization.

Reliance is an essential element of a cause of action alleging fraud (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407 [1958]; Urquhart v Philbor Motors, Inc., 9 AD3d 458, 459 [2004]). Here, Patel established her...