Rice v. Heilbronner

May 10, 2000
Versions:272 A.D.2d 957
708 N.Y.S.2d 684
2000 N.Y. App. Div. LEXIS 8738

—Order unanimously affirmed without costs. Memorandum: In a prior appeal, we affirmed an order granting defendants’ motion for summary judgment dismissing the legal malpractice claims for all damages except those for fees for legal services (Rice v Heilbronner, 269 AD2d 828). Defendants now appeal from an order of Supreme Court granting plaintiffs’ motion for leave to serve an amended complaint adding a cause of action for fraud against defendant Sanford J. Liebschutz, Esq. We affirm.

Contrary to defendants’ contention, plaintiffs set forth the circumstances constituting the alleged fraud in sufficient detail (see, CPLR 3016 [b]; Lanzi v Brooks, 43 NY2d 778, 780, mot to amend remittitur granted 43 NY2d 947, rearg denied 44 NY2d 733). Also contrary to defendants’ contention, the fraud cause of action was not time-barred. Plaintiffs moved to amend the complaint less than two years after their discovery of the alleged fraud, and they established that they could not with reasonable diligence have discovered the alleged fraud earlier (see, CPLR 203 [g]; 213 [8]).

Defendants further contend that a statement of opinion cannot form the basis of a cause of action for fraud. We disagree. Plaintiffs’ allegations that Liebschutz expressed an opinion that he did not believe to be true and made such statement with an intent to deceive are sufficient to state a cause of action for fraud (see, CPC Intl. v McKesson Corp., 70 NY2d 268, 286; see generally, Pickard & Anderson v Young Men’s Christian Assn., 119 AD2d 976, 978; Hutchins v Utica Mut. Ins. Co., 107 AD2d 871, 872). We have considered defendants’ remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Wyoming County, Rath, Jr., J. — Amend Pleading.) Present — Green, J. P., Hayes, Scudder and Kehoe, JJ.