94 A.D.2d 939 | N.Y. App. Div. | 1983
Lead Opinion
— Order reversed, without costs, and motion granted, Moule, J., not participating. Memorandum: The plaintiffs commenced these actions for personal injuries and wrongful death caused by the inhalation of asbestos particles. The complaint sets forth causes of action for negligence and strict products liability against the defendants, suppliers of insulation materials containing asbestos. Plaintiffs moved to amend their complaints to add causes of action for fraud and conspiracy and Special Term denied the motion. We reverse. The proposed amended complaints contain, among other things, allegations of specific tortious conduct including false representations in advertising, concealment and suppression of information pertaining to the hazardous consequences of using asbestos products, editing out or altering industry supported research studies as to exclude references to asbestos-caused diseases and preventing publica
Dissenting Opinion
I would affirm. The fraud alleged in the proposed amended complaints is not extraneous to the original causes of action and does not change the nature of the actions from that of negligence and strict products liability (Brick v Cohn-Hall-Marx Co., 276 NY 259, 264; cf. Simcuski v Saeli, 44 NY2d 442). The allegations of fraud are indistinguishable from those made in the case of Schmidt v Merchants Desp. Transp. Co. (270 NY 287) where it