Liberatore v Greuner

Liberatore v Greuner 2017 NY Slip Op 06720 Decided on September 28, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 28, 2017
Tom, J.P., Mazzarelli, Andrias, Oing, Singh, JJ.
4530 162511/15

[*1]Maria Angeles Liberatore, Plaintiff-Respondent,

v

David Greuner, M.D., Defendant-Appellant.

Kirschenbaum & Kirschenbaum, P.C., Garden City (Caroline P. Wallitt and Steven Sheinwald of counsel), for appellant.

Fensterstock & Partners LLP, New York (Evan S. Fensterstock of counsel), for respondent.

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 unliquidated 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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 28, 2017

CLERK