LaBrake v. Enzien

¶1concur in a memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (concurring). A professional’s intentional misrepresentation, in contrast to his simple concealment or nondisclosure of malpractice (see, e.g., Ross v Community Gen. Hosp., 150 AD2d 838, 842), provides ample basis for a fraud cause of action (see, Harkin v Culleton, 156 AD2d 19, 21). The difficulty with plaintiff’s second cause of action, however, lies in the fact that all the various elements of fraud (see, Simcuski v Saeli, 44 NY2d 442, 451) are alleged except injury occasioned by plaintiff’s reliance on defendant’s claimed misrepresentations. Plaintiff’s negligence claims against the State and county were lost, not because of defendant’s fraud, but because of the latter’s asserted malpractice. For the second cause of action to stand, it must appear that plaintiff was fraudulently and intentionally persuaded by defendant not to seek permission to file a late claim and thereby alleviate the consequences of defendant’s malpractice (supra, at 452, 454). As that is not alleged here, we agree that the second cause of action must be dismissed.