Appellate Division of the Supreme Court of New York, Fourth DepartmentJun 10, 1998
251 A.D.2d 967 (N.Y. App. Div. 1998)
251 A.D.2d 967674 N.Y.S.2d 557

June 10, 1998

Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Dismiss Pleading.

Present — Green, J.P., Pine, Hayes, Callahan and Fallon, JJ.

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion to dismiss the second and third causes of action for failure to state a cause of action and to strike the claim for punitive damages. Those causes of action allege fraud and gross negligence or recklessness, respectively. Dismissal of a fraud cause of action is required "[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged medical malpractice cause of action" ( Karlin v. IVF Am., 239 A.D.2d 560, 561). Here, however, the damages flowing from the alleged fraud include plaintiff's continuation of courses of treatment that were ineffective or may not have been pursued but for the alleged fraud and plaintiff's deprivation of courses of treatment that would have been pursued but for the fraudulently withheld information.

Because the third cause of action alleges administrative acts of gross negligence or recklessness "`easily discernible by a jury on common knowledge'", the court properly refused to dismiss that cause of action ( Twitchell v. MacKay, 78 A.D.2d 125, 127; see also, Lewis v. Columbus Hosp., 1 A.D.2d 444, 446).

Plaintiff's allegations that defendant Norbert Kosinski, D.P.M., intentionally, willfully and wantonly withheld medical records and information from plaintiff in order to avoid the malpractice claim are sufficient to support the claim for punitive damages ( see, McWilliams v. Catholic Diocese, 145 A.D.2d 904, 905).