Opinion
November 16, 1998
Appeal from the Supreme Court, Nassau County (Bucaria, J.).
Ordered that the order is affirmed, with costs.
Because the plaintiff does not have a viable cause of action to recover damages for fraud, she should not be allowed to assert such a claim in her bill of particulars. It is settled law that concealment by a physician or failure to disclose his own malpractice does not give rise to a cause of action in fraud or deceit separate from the customary malpractice action ( see, Simcuski v. Saeli, 44 N.Y.2d 442; Spinosa v. Weinstein, 168 A.D.2d 32). "To recover under a fraud theory, a plaintiff `must allege an available, efficacious remedy or cure for the injuries caused by the [treatment] that he [or she] was diverted from undertaking in consequence to [the] defendants' concealment of [the] misdiagnosis; absent such a medical remedy, it cannot be said that any damages were sustained as a result of the concealment'" ( Luciano v. Levine, 232 A.D.2d 378, 379, quoting Harkin v. Culleton, 156 A.D.2d 19, 25; see also, Simcuski v. Saeli, supra). The plaintiff has failed to make the requisite allegations in this case.
Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.