Liberatore v. Greuner

2017 NY Slip Op 6720, 153 A.D.3d 1207, 60 N.Y.S.3d 680

Opinion

Order, Supreme Court, New York County, (Alice Schlesinger, J.), entered February 23, 2017, which, inter alia, denied defendant’s motion for summary judgment dismissing plaintiff’s claim of fraud, unanimously affirmed, without costs.

Plaintiff has standing to bring this action, as her claims against defendant were abandoned by the trustee as unliqui-dated and remaining unadministered assets of plaintiff’s bankruptcy estate (see In re Furlong, 660 F3d 81, 88 [1st Cir 2011]). The court also correctly found that plaintiff’s claim of fraud is not duplicative of her medical malpractice claims, which were dismissed as untimely. Plaintiff’s fraud claim alleges, not malpractice, but that defendant intentionally drugged her in furtherance of stealing money from her. Furthermore, the damages sought differ from those that would have been available in the malpractice action (see Simcuski v Saeli, 44 NY2d 442 [1978]).

Concur — Tom, J.P., Mazzarelli, Andrias, Oing and Singh, JJ.