Cracolici v. Barkagan

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 1, 2013, which granted defendants’ motion to dismiss the complaint and denied plaintiffs’ cross motion for leave to amend the complaint, unanimously affirmed, without costs. In this action for, among other things, fraud, plaintiff Vincent Cracolici alleges that defendants knowingly and fraudulently concealed the existence of medical malpractice committed by Dr. Simon Barkagan, in the performance of urological surgery in August 1995, and that, as a result, he failed to commence a medical malpractice claim within the statutory time period. *415 Plaintiffs complaint was properly dismissed since he fails to allege the existence of any material misrepresentation on which he justifiably relied, and resulting damages that are separate and distinct from those caused by the alleged malpractice (see Simcuski v Saeli, 44 NY2d 442, 453-454 [1978]; Atton v Bier, 12 AD3d 240, 241 [1st Dept 2004]). Notably, the complaint asserts that plaintiff witnessed the alleged malpractice, and thus, he cannot have reasonably relied on falsified and/or altered records in refraining from commencing a medical malpractice action. Further, plaintiffs allegations of falsity are based on, inter alia, inconsistencies and inaccuracies concerning the dates and times relating to his hospitalization and surgery and the identity of the anesthesiologist, who is not alleged to have committed medical malpractice, information not material to the existence or concealment of Dr. Barkagan’s alleged malpractice. The court providently exercised its discretion in denying plaintiff leave to amend the complaint absent any indication as to the nature of, evidentiary basis for, or viability of, the proposed amendment, a copy of which was not annexed to the cross motion (see CPLR 3025 [b]; Davis & Davis v Morson, 286 AD2d 584, 585 [1st Dept 2001]). Concur — Mazzarelli, J.P., Sweeny, DeGrasse, Feinman and Gische, JJ.