Weir Metro Ambu-Service, Inc. v. Turner

442 N.E.2d 1268, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 1982 N.Y. LEXIS 3779

• Court: New York Court of Appeals
• Decided: October 19, 1982
• Status: Published

Opinion

opinion of the court

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff’s first cause of action failed to allege either the elements of scienter or deceit, each essential to a cause of action for fraud (24 NY Jur, Fraud and Deceit, § 140). Insufficient too, is the plaintiff’s second cause of action since the oral agreement on which it was based contravened the requirement that a contract to perform services for a medical facility which has been issued an operating certificate or certificate of approval be in writing (10 NYCRR 400.4 [a] [1]; see Tooker v Inter-County Tit. Guar. & Mtge. Co., 295 NY 386). Finally, as to the third cause of action, punitive damages may not be sought as a separate cause of action (see Trans-State Hay & Feed, Corp. v Faberge, Inc., 42 AD2d 535, affd 35 NY2d 669).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.