Opinion
May 20, 1993
Appeal from the Supreme Court, Albany County (Kahn, J.).
Plaintiff commenced this action against, among others, defendant St. Catherine's Center for Children (hereinafter defendant) for damages allegedly resulting from defendant's failure to disclose information to plaintiff concerning the physical, mental and emotional condition of James M. Reidy prior to his 1984 placement in the home of plaintiff and her husband. Plaintiff's first cause of action, at issue on this appeal, alleges in pertinent part that, prior to the placement, plaintiff asked representatives of defendant whether Reidy had any sexually related problems and, relying upon the negative response to her inquiry, plaintiff and her husband took Reidy into their home and proceeded toward his adoption. In July 1984, plaintiff became aware of sexual proclivities of Reidy of such a nature that plaintiff felt compelled to give up her full-time employment in order to be a full-time mother to Reidy and her other children. Plaintiff sought damages for, among other things, her resulting lost income. Following joinder of issue, defendant moved for summary judgment dismissing the first cause of action upon the ground that it sought impermissible derivative damages for negligent injury to Reidy. Supreme Court denied the motion and defendant appeals.
We affirm. In an effort to support its motion and appeal, defendant has substantially mischaracterized plaintiff's first cause of action. Contrary to defendant's representation, the cause of action does not allege negligence. Rather, as properly found by Supreme Court, the cause of action alleges with sufficient particularity the required elements of fraud, i.e., misrepresentation of a material fact, falsity, scienter and deception (see, Koncelik v Abady, 179 A.D.2d 942, 944). The record also reveals questions of fact regarding defendant's representations, whether they were material, the intent with which they were made (see, Ridgeline Constructors v Elmira Glass Technology Corp., 183 A.D.2d 1041, 1044; Striker v Graham Pest Control Co., 179 A.D.2d 984, lv dismissed 79 N.Y.2d 1040) and the extent of plaintiff's damages (see, Lawrence v Houston, 172 A.D.2d 923).
Weiss, P.J., Levine, Mahoney and Casey, JJ., concur. Ordered that the order is affirmed, with costs.