Bencivenga & Co. v. Phyfe

210 A.D.2d 22, 619 N.Y.S.2d 33

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Herman Cahn, J.), entered June 21, 1993, which, to the extent appealed from, denied plaintiffs motion to amend its complaint, unanimously affirmed, with costs.

Plaintiff’s proposed causes of action based on fraud were palpably insufficient, and thus leave to amend was properly denied. A cause of action based upon breach of contract cannot be converted into one for fraud merely by alleging that defendants did not intend to fulfill the contract (Glenn Partition v Trustees of Columbia Univ., 169 AD2d 488). Plaintiff’s claims of alleged fraudulent inducement are based on future intent, and are thus also deficient (see, Gordon v De Laurentiis Corp., 141 AD2d 435, 436). Concur—Ellerin, J. P., Wallach, Ross and Williams, JJ.