Panagakos v. Oxford Health Plans, Inc.

May 24, 2004
Versions:7 A.D.3d 771
776 N.Y.S.2d 880

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (DiBlasi, J), entered December 20, 2002, as granted that branch of the defendants’ motion which was for summary judgment dismissing the third cause of action to recover damages for fraud.

Ordered that the order is affirmed insofar as appealed from, with costs.

“The essential elements of a cause of action for fraud are ‘representation of a material existing fact, falsity, scienter, deception and injury’ ” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995], quoting Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407 [1958] [emphasis supplied]). In response to the defendants’ prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]), the plaintiff failed to raise a triable issue of fact as to whether the defendants falsely represented the coverage she would receive under the “Oxford Medicare Advantage” plan. Therefore, the defendants were entitled to summary judgment dismissing the third cause of action to recover damages for fraud.

In light of our determination, we do not reach the remaining contentions. Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.