
    Frances Friedberg, as Administratrix of the Estate of Jacob Friedberg, Deceased, Plaintiff, v. Howard H. Gordon et al., Defendants.
    Supreme Court, Special Term, Bronx County,
    August 19, 1958.
    
      Jack M. Marder for plaintiff.
    
      Lawless & Lynch for Philip Goldstein, defendant.
    
      Garbarini & Kroll for Howard H. Gordon, defendant.
   Charles A. Loreto, J.

In this case an order was entered dismissing the complaint as against the defendant Philip Gold-stein, with the statement there was no opposition. The attorney ‘for said defendant has called attention of the court to the fact that although no written opposition was submitted on the motion, there was an appearance in opposition thereto, and has ' accordingly requested that the order be vacated and the motion reconsidered as opposed. The court hereby grants the request of the plaintiff’s attorney and reconsiders the motion as opposed.

The motion seeks the dismissal of the complaint as against the said defendant Goldstein on the ground that on its face it fails to state facts sufficient to constitute a cause of action. The complaint sets forth a cause of action in malpractice against the codefendant Gordon. The action against the defendant Goldstein is allegedly in fraud. The only allegations with respect to fraud found in paragraph 11 of the complaint are that he intentionally and erroneously rendered a false diagnosis “ without any medical basis ” and in “ informing plaintiff that plaintiff’s intestate Jacob Friedberg had died of coronary sclerosis and general arteriosclerosis ” and further, in “ giving the aforesaid diagnosis ” without ascertaining the truth thereof. These allegations are insufficient to support a cause of action in fraud. They fail to meet the basic requirements for this type of action. Plaintiff has failed to state that the defendant intended to misrepresent what he knew to be otherwise, has failed to state what the accurate diagnosis should have been, has failed to indicate her reliance on said representation and how pecuniary damage has resulted to her by reason thereof.

In view of the fact that a prior motion to dismiss the complaint against the defendant Goldstein for insufficiency was granted by Mr. Justice Spector, who granted leave to serve an amended complaint, which is now before the court, the motion is granted without leave for further repleading. Accordingly, the order heretofore entered herein is modified to read: “ Motion to dismiss the complaint as against the defendant Goldstein is granted.”  