Larry Marcus v Lindsley F. Kimball Research Institute of the New York Blood Center

Marcus v Lindsley F. Kimball Research Inst. of N.Y. Blood Ctr. 2005 NY Slip Op 09414 [24 AD3d 187] December 8, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Larry Marcus et al., Appellants,
v
Lindsley F. Kimball Research Institute of the New York Blood Center, Respondent, et al., Defendants.

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Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered November 8, 2004, which, to the extent appealed from as limited by the brief, upon the prior grant of defendant-respondent's motion pursuant to CPLR 3211 and 3016, dismissed plaintiffs' fraud claims, unanimously affirmed, without costs.

Plaintiffs' fraud claims are not materially distinguishable from their time-barred claims for malpractice and negligence and accordingly were properly dismissed as duplicative of those claims (see Atton v Bier, 12 AD3d 240 [2004]). Moreover, the putative fraud claims state no cognizable claim since they do not sufficiently allege that defendants knew that the paternity report issued by them was inaccurate and deliberately concealed that circumstance from plaintiffs (see id.; Monaco v New York Univ. Med. Ctr., 213 AD2d 167 [1995], lv dismissed in part and denied in part 86 NY2d 882 [1995]). Concur—Andrias, J.P., Sullivan, Williams, Gonzalez and Catterson, JJ.