Edgar E. Moser Et Al. v. Louis Spizzirro Et Al‪.‬

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. Disposition As so modified, judgment affirmed, without costs.