Cavalry Investments, LLC v. Household Automotive Finance Corp.

8 A.D.3d 317, 777 N.Y.S.2d 719, 2004 N.Y. App. Div. LEXIS 7856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2004
• Status: Published

Opinion

In an action to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered May 2, 2003, as granted the defendants’ motion to dismiss the second cause of action to recover damages for fraud.

Ordered that the order is affirmed insofar as appealed from, with costs.

A cause of action to recover damages for fraud does not lie where, as here, the only fraud claimed relates to an alleged breach of contract (see Sokol v Addison, 293 AD2d 600 [2002]; Shah v Micro Connections, 286 AD2d 433 [2001]). The claimed misrepresentation, in effect, is that by adversely selecting accounts made available for purchase, the defendants rendered the collections histories they provided to the plaintiff inaccurate. Such conduct constituted a mere failure to perform under the contract and was insufficient to sustain a cause of action alleging fraud (see Sokol v Addison, supra).

In light of our determination, it is unnecessary to address the plaintiff’s remaining contentions. Ritter, J.P., Altman, Mastro and Skelos, JJ., concur.