McNAMARA v. DROESCH (2008)

In an action, inter alia, to recover damages for fraud and medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 8, 2006, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Where a fraud claim gives rise to damages which are not separate and distinct from those flowing from an alleged medical malpractice cause of action, it must be dismissed (see Bellera v. Handler, 284 A.D.2d 488, 490, 727 N.Y.S.2d 137).   Here, the defendants established their prima facie entitlement to judgment as a matter of law with respect to the cause of action alleging fraud, and the plaintiffs failed to raise a triable issue of fact.   The plaintiffs failed to demonstrate that the injuries arising from the alleged fraud differed from those caused by the alleged malpractice.   Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud.