(dissenting). We respectfully dissent and would affirm for the reasons stated in the opinion of Justice George B. Ceresia, Jr. in Supreme Court.
While we acknowledge the general principle that concealment or failure to disclose malpractice does not give rise to a separate cause of action for fraud unless subsequent material *779misrepresentations are made in an effort to conceal the earlier negligence and those representations create damages independent of those flowing from the malpractice, we do not believe that this principle has application here. Although the seeming identity of the allegations and damages comprising the fraud and malpractice claims may appear to support the majority’s determination, we believe that these claims could well be resolved in a manner that would militate against it.
As noted by Supreme Court, there are numerous underlying issues of law and fact whose resolution affects both claims. Until it is determined whether and to what extent defendant was negligent, and whether and to what extent plaintiff was damaged thereby, we do not believe we can conclude that the fraud claim is precluded. Obviously, if defendant is found to have acted without negligence, the fraud claim becomes academic. If, however, malpractice is found, ascertainment of plaintiff’s damages in consequence thereof is not necessarily had simply with reference to the $150,000 settlement payment, whereas damages upon the fraud claim, if proven, would be so measured.