By Chambers, J.P.; Lasalle, Barros, Christopher, JJ. HUICHUN FENG, app, v. ACCORD PHYSICIANS, PLLC, ETC., ET AL., res — (Index No. 512282/14) Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant. Pollack Solomon Duffy LLP, New York, NY (Phillip Rakhunov of counsel), for respondents. In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated August 17, 2017. The order granted the defendants’ motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied. On August 4, 2014, the then 70-year-old plaintiff presented at the offices of the defendants, Accord Physicians, PLLC, and Vitaly Raykhman, after being referred for an elevated level of prostate-specific antigen. On August 13, 2014, Raykhman performed a transrectal prostate biopsy on the plaintiff. Following the procedure, the plaintiff used the bathroom and observed blood from his rectum in the toilet bowl. The plaintiff notified the defendants’ Mandarin-speaking interpreter, who informed Raykhman. Raykhman looked in the toilet bowl and relayed to the interpreter that this was a normal amount of blood from the procedure. A few minutes later, the plaintiff again used the toilet, and discharged even more blood from his rectum. Raykhman was again informed and again relayed that this was normal, and instructed the plaintiff to go home. The plaintiff then left the defendants’ offices. While at the subway station, the plaintiff experienced more bleeding. An ambulance was called and the plaintiff was transported to the hospital, where he was given a blood transfusion and underwent surgery at the site of the biopsy to repair a laceration. In his complaint, the plaintiff asserted causes of action alleging medical malpractice and lack of informed consent. Specifically, the plaintiff alleged that Raykhman departed from accepted standards of medical practice by failing to properly perform the transrectal biopsy procedure and by discharging him without conducting a proper physical examination despite his repeated complaints of bleeding from his rectum. Following depositions of the plaintiff and Raykhman, the defendants moved for summary judgment dismissing the complaint. The plaintiff opposed the motion. By order dated August 17, 2017, the Supreme Court granted the defendants’ motion, and the plaintiff appeals. “The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (Longhi v. Lewit, 187 AD3d 873, 877 [internal quotation marks omitted]). Consequently, on a motion for summary judgment in a medical malpractice case, the defendant physician must come forward with evidence in admissible form establishing, prima facie, either that he or she did not deviate from good and accepted medical practice, or that, if there was such a departure, it was not a proximate cause of the plaintiff’s injuries (see Rosario v. Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 AD3d 1426; Myers v. Ferrara, 56 AD3d 78, 83). “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” (Kogan v. Bizekis, 180 AD3d 659, 660; see Smarkucki v. Kleinman, 171 AD3d 1118, 1119 [internal quotation marks omitted]). “Conclusory statements set forth in an affirmation of a medical expert which do not refute or address the specific allegations of negligence made by the plaintiff in his or her complaint and bill of particulars are insufficient to make a prima facie showing that a defendant physician is entitled to judgment as a matter of law” (Ross-Germain v. Millennium Med. Servs., P.C., 144 AD3d 658, 659-660 [internal quotation marks omitted]). The failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Here, viewing the evidence in the light most favorable to the nonmoving plaintiff (see Stukas v. Streiter, 83 AD3d 18, 22), the defendants failed to establish their prima facie entitlement to summary judgment dismissing the complaint. The affidavit of the defendants’ expert failed to address and rebut the specific allegations of malpractice set forth in the complaint and bill of particulars (see Kogan v. Bizekis, 180 AD3d at 660), and failed to eliminate all triable issues of fact as to whether Raykhman properly performed the transrectal biopsy procedure and properly discharged the plaintiff despite his repeated complaints of bleeding from his rectum, and whether these alleged departures from good and accepted medical practice were a proximate cause of the plaintiff’s injuries (see Smarkucki v. Kleinman, 171 AD3d at 1119). The defendants’ failure to satisfy the prima facie burden requires the denial of that branch of their motion which was for summary judgment dismissing the medical malpractice cause of action, regardless of the sufficiency of the opposing papers (see Kogan v. Bizekis, 180 AD3d at 660; Oliver v. New York City Health & Hosps. Corp., 178 AD3d 1057; Smarkucki v. Kleinman, 171 AD3d at 1119). “To establish a cause of action for malpractice based on lack of informed consent, plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” (Godel v. Goldstein, 155 AD3d 939, 941-942 [internal quotation marks omitted]; see Public Health Law §2805-d; Dyckes v. Stabile, 153 AD3d 783, 785). “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” (Schussheim v. Barazani, 136 AD3d 787, 789). Here, the defendants failed to submit proof sufficient to establish, prima facie, that the plaintiff was informed of the reasonably foreseeable risks associated with the treatment, or that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed (see Dyckes v. Stabile, 153 AD3d at 785; Koi Hou Chan v. Yeung, 66 AD3d 642). Since the defendants failed to eliminate all triable issues of fact, the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the cause of action alleging lack of informed consent, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853). CHAMBERS, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.
By Dillon, J.P.; Hinds-Radix, Lasalle, Barros, JJ. MICHAEL DAVIS CONSTRUCTION, INC., res, v. 129 PARSONAGE LANE, LLC, app — (Index No. 616502/16) Rottenberg Lipman Rich, P.C., New York, NY (Robert A. Freilich of counsel), for appellant. Lynn, Gartner, Dunne & Covello, LLP, Mineola, NY (Stephen W. Livingston of counsel), for respondent. In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated October 26, 2017. The order, insofar as appealed from, granted the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendant’s second, third, fourth, and fifth counterclaims and the defendant’s demand for punitive damages. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the defendant’s third counterclaim, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. In October 2016, the plaintiff commenced this action, inter alia, to recover damages for breach of contract based on the defendant’s alleged failure to pay the plaintiff the sum of $72,500 for certain construction work that the plaintiff performed on the defendant’s property in Sagaponack. In November 2016, the defendant interposed an answer denying the material allegations in the complaint, asserting five affirmative defenses, and interposing counterclaims alleging breach of contract, negligent construction, breach of warranty, fraud in the inducement, and negligent misrepresentation based on the plaintiff’s alleged omissions and representations concerning the quality and completeness of the work. The defendant also asserted a demand for punitive damages. In December 2016, the plaintiff moved pursuant to CPLR 3211(a)(7) to dismiss the defendant’s counterclaims alleging negligent construction (second counterclaim), breach of warranty (third counterclaim), fraud in the inducement (fourth counterclaim), and negligent misrepresentation (fifth counterclaim), and the defendant’s demand for punitive damages. In an order dated October 26, 2017, the Supreme Court, inter alia, granted the plaintiff’s motion. The defendant appeals. The Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the defendant’s counterclaim alleging negligent construction as duplicative of the counterclaim alleging breach of contract. “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 389). “This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” (id. at 389). While “there are circumstances where a professional architect may be subject to a tort claim for failure to exercise due care in the performance of contractual obligations” (Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 NY3d 704, 713), “[t]he nature of the injury, the manner in which the injury occurred, and the resulting harm are all relevant factors in considering whether claims alleging breach of contract and tort may exist side by side” (Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC, 136 AD3d 680, 684; see Sommer v. Federal Signal Corp., 79 NY2d 540, 551). Here, the counterclaims did not allege facts that would give rise to a duty owed to the defendant that is independent of the duty imposed by the parties’ agreement. Thus, the defendant is essentially seeking the contractual benefit of its bargain with the plaintiff, which cannot be obtained through a counterclaim sounding in tort (see Sommer v. Federal Signal Corp., 79 NY2d at 557; Ocean Gate Homeowners Assn., Inc. v. T.W. Finnerty Prop. Mgt., Inc., 163 AD3d 971, 974; Schottland v. Brown Harris Stevens Brooklyn, LLC, 137 AD3d 997, 998). The Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the defendant’s counterclaim alleging fraud in the inducement as duplicative of the counterclaim alleging breach of contract. “A cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim” (Heffez v. L & G Gen. Constr., Inc., 56 AD3d 526, 527). General allegations that a party entered into a contract while lacking the intent to perform it are insufficient to support a claim of fraudulent inducement (see Fromowitz v. W. Park Assoc., Inc., 106 AD3d 950, 951). Where the fraud claim is premised upon an alleged breach of contractual duties and does not concern representations which are collateral or extraneous to the terms of the contract between the parties, a fraud claim does not lie (see Oceanview Assoc., LLC v. HLS Bldrs. Corp., 184 AD3d 843, 845). Here, the allegations which form the basis of the counterclaim alleging fraud in the inducement are the same as those underlying the counterclaim alleging breach of contract. The defendant’s allegation that the plaintiff fraudulently represented that it would install all soundproofing and thermal insulation on the project “amounted only to a misrepresentation of the intent or ability to perform under the contract” (Gorman v. Fowkes, 97 AD3d 726, 727; see Renaissance Equity Holdings, LLC v. Al-An El. Maintenance Corp., 121 AD3d 661, 664; Fromowitz v. W. Park Assoc., Inc., 106 AD3d at 951-952). Moreover, while the defendant alleged that it remitted payment to the plaintiff in reliance on the representation that the work had, in fact, been performed, such postcontractual representation did not serve as an inducement to enter into the contract. The Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the counterclaim alleging negligent misrepresentation as duplicative of the counterclaim alleging breach of contract. A claim alleging negligent misrepresentation requires the party asserting the claim to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the other party to impart correct information; (2) that the information was incorrect; and (3) reasonable reliance on the information (see J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148). When both are alleged, a negligent misrepresentation claim will be found to be duplicative of a breach of contract claim where the pleading fails to allege facts that would give rise to a duty that is independent from the parties’ contractual obligations (see Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC, 136 AD3d at 684; Board of Mgrs. of Soho N. 267 W. 124th St. Condominium v. NW 124 LLC, 116 AD3d 506, 507). Here, the allegations supporting the counterclaim alleging negligent misrepresentation are based solely on the contractual relationship between the parties (see Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC, 136 AD3d at 684; cf. AB Oil Servs., Ltd. v. TCE Ins. Servs., Inc., 188 AD3d 624, 629). The Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the defendant’s demand for punitive damages. “Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights” (Rocanova v. Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613). Thus, “the threshold task for a court considering [a party's] motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 316). Here, the defendant’s counterclaims failed to set forth an independent tort sufficient to warrant punitive damages. Finally, the Supreme Court should have denied that branch of the plaintiff’s motion which was to dismiss the counterclaim alleging breach of warranty as duplicative of the counterclaim alleging breach of contract. Contrary to the plaintiff’s contention, the breach of warranty counterclaim is based upon an agreement that is independent of the parties’ original construction agreement. In opposition to the plaintiff’s motion, the defendant submitted a copy of an express limited warranty, which was executed by the plaintiff several years after the parties allegedly entered into their original construction agreement. Thus, the counterclaim alleging breach of warranty is not duplicative of the counterclaim alleging breach of contract (see Rosenblum v. Island Custom Stairs, Inc., 130 AD3d 803, 804; 126 Newton St., LLC v. Allbrand Commercial Windows & Doors, Inc., 121 AD3d 651, 655). DILLON, J.P., HINDS-RADIX, LASALLE and BARROS, JJ., concur.
