The following papers were considered in connection with Motion Sequence #1 by defendant Morgantini for an order, pursuant to CPLR 3211(a)(5) dismissing with prejudice any claims related to the plaintiff's August 4, 2009 surgery as the two and one-half year statute of limitations proscribed by CPLR 214-a has expired for that claim, and for such other and further relief as to the Court may seem just and proper; Motion Sequence No.2 by plaintiff for an Order denying the motion to dismiss by defendant Morgantini; granting plaintiff's cross-motion for leave to file and serve its verified amended complaint and for such other and further relief.

PAPERSNUMBE[*2]RED

NOTICE OF MOTION/AFFIRMATION/EXHIBIT A1

NOTICE OF CROSS MOTION/AFFIRMATION/EXHIBITS A-E2

AFFIRMATION IN OPPOSITION and IN REPLY TO PLAINTIFF'S

OPPOSITION TO MORGANTINI'S MOTION TO DISMISS

(Morgantini)3

AFFIRMATION IN OPPOSITION (HVC at St. Francis)4

AFFIRMATION IN OPPOSITION (Mid-Hudson)5

Plaintiff commenced this action on February 1, 2013, to recover damages for claims related to an August 4, 2009, surgical repair to his left rotator cuff.

These motions follow.

Morgantini Motion to Dismiss/Cross-Motion to Amend Pleadings

As to Morgantini and Panos

CPLR 3025(b) provides that leave to amend pleadings "shall be freely given upon such terms as may be just." Thus, motions for leave to amend are liberally granted absent prejudice or surprise (see Long Is. Tit. Agency, Inc. v. Frisa, 45 AD3d 649 [2d Dept 2007]). "A court hearing a motion for leave to amend will not examine the merits of the proposed amendment unless the insufficiency or lack of merit is clear and free from doubt ... In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied" (id. at 649 [internal quotation marks and citation omitted]; see Ricca v. Valenti, 24 AD3d 647, 648 [2d Dept 2005]).

Although the proposed pleading does not meet the particularity requirements of CPLR §3016, a viable cause of action for fraud can be sustained where, as here, one comes forward with "facts . . . sufficient to permit a reasonable inference of the alleged conduct" (Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). There need not be "unassailable proof" of same (id).

The Court is satisfied that there are sufficient allegations which if not express then by fair and reasonable intendment are sufficient to allege fraud against Morgantini on an acting in concert basis with defendant Panos, such that a cause of action for fraud has been sufficiently made out as asserted against them. Since, however, the Court is not persuaded that the damages arising out of the alleged fraud are separate and distinct from those flowing from the alleged malpractice, the motion to add such a cause of action is denied (Simcuski v. Saeli, 44 NY2d 442 [1978]). Denial, however, is without prejudice to reapplication upon the close of disclosure (see CPLR 3211[d]).

The determination denying leave to add a cause of action for fraud where a cause of action for medical malpractice exists is not necessarily dispositive as to whether a medical malpractice defendant can be estopped from asserting a statute of limitations defense to a medical malpractice cause of action.

As noted by Mr. Justice Earle C. Bastow in Erbe v. Lincoln Rochester Trust Co., 13 AD2d 211, 213 . . . : "Fraudulent representations may play a dual role. They may be the basis for an independent action for fraud. They may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the statute of limitations as against a cause of action for breach of fiduciary relations."

Principles of equitable estoppel may act to relieve a plaintiff from the proscriptions of the statute of limitations where, for example, a complaint alleges "that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury . . . [until later then he or she would have]" (Simcuski v. Saeli, id. at 448).

Here, the Court is satisfied that the proposed pleadings can be fairly construed to allege that through the use of various misrepresentations, concealments and other deceitful devices occasioned by both or one or the other, including Panos on behalf of Morgantini, these two defendants operated and otherwise maintained an enterprise of deceit and fraud, among other things, fostered by their close working relationship. This asserted concerted fraudulent conduct and concealment is sufficient to equitably estop these defendants from successfully advancing a statute of limitations defense to the cause of action against them for medical malpractice.

Having determined that the complaint can fairly be susceptible of such construction, the Court denies Morgantini's motion to dismiss on statute of limitations grounds the cause of action against him for medical malpractice upon the condition that plaintiff serve and file an amended complaint incorporating the allegations otherwise sought to be incorporated into a separate cause of action for fraud, hereinabove denied, into a separate cause of action against Morgantini for medical malpractice (see McCarthy v. Weaver, 99 AD2d 652 [4th Dept 1984][although cause of [*3]action for civil conspiracy could not be maintained, there being no such substantive tort, plaintiff granted leave to replead factual allegations that defendants acted in concert to defraud them]), which shall be served and filed so as to be received within thirty days hereof.

Motion to Amend as to Remaining Defendants

Plaintiff's cross-motion for leave to amend his complaint in the form annexed to the cross-moving papers to add a separate cause of action for fraud as against the remaining defendants is denied. Most notable, the Court is not satisfied that the proposed pleading meets the particularity requirements of CPLR §3016, nor has plaintiff otherwise made a sufficient evidentiary showing to support the proposed claim (D'Orazio v. Mainetti, 39 AD3d 981, 982 [3d Dept 2007]).

A cause of action for fraud must be stated with detail (CPLR 3016 [a]). Further, "in order to establish fraud, a plaintiff must show a material misrepresentation of an existing fact, made with knowledge of its falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" (MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 AD3d 287 [1st Dept 2011]). "[B]are allegations of fraud without any allegation of the details constituting the wrong are clearly not sufficient to sustain such a cause of action" (Gill v. Caribbean Home Remodeling Co., 73 AD2d 609 [2d Dept 1979]; see also Glassman v. Catli, 111 AD2d 744, 745 [2d Dept 1985]["bare conclusory allegations of fraud are insufficient to sustain a cause of action sounding in fraud"]).

Although a viable cause of action for fraud need not be met with "unassailable proof" of same, at the very least, movant had to come forward with "facts . . . sufficient to permit a reasonable inference of the alleged conduct" (Pludeman v. Northern Leasing Sys., Inc., 10 NY3d at 492, 860 N.Y.S.2d 422, 890 N.E.2d 184), which it has failed to do.

However, denial of the cross-motion is without prejudice to an otherwise timely and proper reapplication upon the close of disclosure.

To any further extent, the motion and cross-motion are denied.

The parties are to appear for a Status Conference on February 11, 2014 at 9:30 A.M.

The foregoing constitutes the Opinion, Decision, and Order of the Court. [*4]

Dated: Carmel, New York

November 21, 2013

S/ __________________________________

HON. LEWIS J. LUBELL, J.S.C.