Colucci v. O'Brien

204 A.D.2d 257, 611 N.Y.S.2d 594, 1994 N.Y. App. Div. LEXIS 4553

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1994
• Status: Published

Opinion

—In an action to recover damages for breach of contract, fraud, fraudulent inducement to contract, and civil conspiracy, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Burrows, J.), dated April 9, 1992, which granted the defendants’ motion for partial summary judgment dismissing all causes of action asserted against Michael O’Brien individually, and further, dismissing the second, third, and fourth causes of action asserted against the corporate defendant Michael O’Brien Construction Corp.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted partial summary judgment in favor of the defendants dismissing the causes of action premised on theories of fraud, fraudulent inducement to contract, and civil conspiracy. The facts constituting the allegedly fraudulent representations are the same as those allegedly giving rise to the plaintiffs’ cause of action to recover damages for breach of contract. A failure to perform a promise is merely a breach of contract which must be enforced by an action to recover damages for breach of contract (see, Wegman v Dairylea Coop., 50 AD2d 108, 113; see also, Locascio v James V. Aquavella, M.D., P. C., 185 AD2d 689; S&D Maintenance Co. v City of New York, 169 AD2d 417). We find that the Supreme Court properly granted summary judgment dismissing all causes of action except the breach of contract cause of action asserted against the corporate defendant (see, Westminster Constr. Co. v Sherman, 160 AD2d 867).

We have considered the plaintiffs’ remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Ritter and Santucci, JJ., concur.