SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 4, 1968
EDGAR E. MOSER ET AL., RESPONDENTS,
LOUIS SPIZZIRRO ET AL., APPELLANTS
Judgment of the Supreme Court, Westchester County, dated December 13, 1967, modified, on the law and the facts, by striking out the second adjudicatory paragraph, except the provision awarding plaintiffs the costs of the action and directing execution therefor.
Beldock, P. J., Christ, Brennan, Benjamin and Martuscello, JJ., concur.
In our opinion, the second cause of action, for fraudulent concealment, should have been dismissed for failure of proof. The mere silence of defendants, unaccompanied by some act or conduct which deceived plaintiffs, was not an actionable fraud in the absence of any confidential or fiduciary relationship (Perin v. Mardine Realty Co., 5 A.D.2d 685
, affd. 6 N.Y.2d 920; cf. Foster v. Parker, 282 App. Div. 766, 767, affd. 2 N.Y.2d 848; Amend v. Hurley, 293 N. Y. 587, 596; Peoples' Bank of City of New York v. Bogart, 81 N. Y. 101, 107; Dambmann v. Schulting, 75 N. Y. 55, 61). Nor do we think there was proof of negligence so gross that an intent to defraud could be reasonably implied. Negligent and faulty construction there may have been, but negligence and fraud are not synonymous or legally equivalent terms, although in a proper case negligence may be so gross as to take the place of a deliberate intention to work a fraud (cf. State St. Trust Co. v. Ernst, 278 N. Y. 104, 112; Ultramares Corp. v. Touche, 255 N. Y. 170, 186; Reno v. Bull, 226 N. Y. 546; Staff v. Lido Dunes, 47 Misc. 2d 322, 325). We also agree with appellants that there were errors in the charge and in the trial court's refusal to charge the general rule as to silence in connection with the fraud cause of action. Since we are dismissing that cause of action and the errors had no effect on the jury's determination of the first cause of action, the judgment, as herein modified, should be affirmed.
As so modified, judgment affirmed, without costs.
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