Weir Metro Ambu-Service, Inc. v. Turner, AMBU-SERVIC

• Decision Date: 19 October 1982
• Docket Number: AMBU-SERVIC,INC
• Citation: 442 N.E.2d 1268,57 N.Y.2d 911,456 N.Y.S.2d 757
• Parties: , 442 N.E.2d 1268 WEIR METRO, Appellant, v. Sophia TURNER et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 757

456 N.Y.S.2d 757

57 N.Y.2d 911, 442 N.E.2d 1268

WEIR METRO AMBU-SERVICE, INC., Appellant, v. Sophia TURNER et al., Respondents.

Court of Appeals of New York.

Oct. 19, 1982.

Robert J. Dinerstein, Carle Place, for appellant.

Doris G. Traub, Brooklyn, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 87 A.D.2d 649, 448 N.Y.S.2d 744, should be affirmed, with costs.

Plaintiff's first cause of action failed to allege either the elements of scienter or deceit, each essential to a cause of action for fraud (24 N.Y.Jur., Fraud and Deceit, § 140). Insufficient too, is the plaintiff's second cause of action since the oral agreement on which it was based contravened the requirement that a contract to perform services for a medical facility which has been issued an operating certificate or certificate of approval be in writing (10 NYCRR 400.4[a][1]; see Tooker v. Inter-County Tit. Guar. & Mtge. Co., 295 N.Y. 386, 68 N.E.2d 179). Finally, as to the third cause of action, punitive damages may not be sought as a separate cause of action (see Trans-State Hay & Feed Corp. v. Faberge, Inc., 42 A.D.2d 535, 344 N.Y.S.2d 730, affd. 35 N.Y.2d 669, 360 N.Y.S.2d 886, 319 N.E.2d 201).

COOKE, C.J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2[g] ), order affirmed, with costs, in a memorandum.