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Supreme Court, Appellate Division, First Department, New York.

Gregory T. ABBONDANDOLO, et al., Plaintiffs-Appellants-Respondents, v. Gary HITZIG, M.D., et al., Defendants-Respondents-Appellants.

Decided: April 05, 2001

WILLIAMS, J.P., MAZZARELLI, WALLACH, BUCKLEY and FRIEDMAN, JJ. Susan E. Lysaght, for Plaintiffs-Appellants-Respondents. Michael A. Ellenberg, for Defendants-Respondents-Appellants.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered July 13, 2000, which, inter alia, granted that branch of defendants' motion seeking severance and dismissal of the claims of all plaintiffs other than plaintiff Michael Soskel in this action for medical malpractice, fraud, and breach of contract and granted that branch of defendant's motion seeking dismissal pursuant to CPLR 3211(a)(7) of plaintiff Soskel's causes of action for common-law fraud and breach of contract, but granted plaintiff leave to replead those causes, unanimously modified, on the law, to the extent of denying Soskel leave to replead the causes of action for common-law fraud and breach of contract, and otherwise affirmed, without costs.

 The court properly severed the separate claims of the 65 individual plaintiffs.   While it may be true that plaintiffs will to some extent rely on the same evidence, the record indicates nonetheless that “individual issues predominate, concerning particular circumstances applicable to each plaintiff so as to preclude the direction of a joint trial” (Bender v. Underwood, 93 A.D.2d 747, 748, 461 N.Y.S.2d 301).   Moreover, “the resulting and cumulative prejudice to [defendants] by permitting the jury, in one trial, to determine the multiple claims of malpractice at issue here, far outweighs the benefit derived from the conduct of a joint trial” (Bender, supra).   And with 65 claims, the evident potential for jury confusion must be considered (id.).

 The court erred in granting plaintiffs leave to replead the common-law fraud cause of action.  “It is only when the alleged fraud occurs separately from and subsequent to the malpractice that a plaintiff is entitled to allege and prove a cause of action for intentional tort ․, and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice” (Coopersmith v. Gold, 172 A.D.2d 982, 568 N.Y.S.2d 250).   Here, the complaint's allegations of fraud are “part and parcel” of the alleged malpractice (id.).   Moreover, the claimed damages resulting from the alleged fraud are not distinct from the claimed damages flowing from the alleged malpractice.

 In light of the distinction between statutory fraud and common-law fraud, it is proper, in the instant case, to permit a claim for statutory fraud but not for common-law fraud (compare Karlin v. IVF Am., 93 N.Y.2d 282, 293, 690 N.Y.S.2d 495, 712 N.E.2d 662 with Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608).

 The court also erred in granting plaintiffs leave to replead the breach of contract claim.   A cause of action for breach of contract will not be sustained where “it is merely a redundant pleading of plaintiff's malpractice claim in another guise, an attempt to plead as a contract action one which is essentially a malpractice action” (Monroe v. Long Is. Coll. Hosp., 84 A.D.2d 576, 443 N.Y.S.2d 433).   Here, there has been no showing of a “special promise to effect a cure or to accomplish some definite result” (id.).   Although a violation of defendant's alleged promotional “promises” might support a statutory fraud claim, they do not purport to guarantee a particular result to a particular person beyond the generic goal of obtaining “undetectable, permanent and natural” hair.   In short, plaintiffs have not set forth a “genuine prima face claim” for breach of contract such that leave to replead would be warranted (see, Siegel, N.Y. Prac. § 275, at 435 [3rd ed.]).