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CATHERINE PANAGAKOS, appellant, v. OXFORD HEALTH PLANS, INC., ET AL., respondents.

DECISION ORDER

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'" (emphasis supplied) ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, quoting Channel Master Corp. v. Aluminum Ltd. Sales Corp., 4 N.Y.2d 403, 407). 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 N.Y.2d 851, 852), 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.

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PANAGAKOS v. OXFORD HEALTH PLANS, INC
(May 24, 2004)