Edwil Industries, Inc. v. Stroba Instruments Corp.

131 A.D.2d 425, 516 N.Y.S.2d 233, 1987 N.Y. App. Div. LEXIS 47888

Opinion

In an action to recover damages for breach of contract, in quantum meruit, and for fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated October 3, 1984, which granted the defendants’ cross motion to dismiss the seventh cause of action in the amended complaint, and denied those branches of the plaintiff’s motion which were to dismiss the second additional affirmative defense and the first and sixth affirmative defenses.

Ordered that the order is affirmed, with costs.

It is well settled that no cause of action to recover damages for fraud arises when the only fraud charged relates to a breach of contract (see, Spellman v Columbia Manicure Mfg. Co., 111 AD2d 320; Gould v Community Health Plan, 99 AD2d 479). The gravamen of the seventh cause of action is that the defendants, pursuant to a contract, were obligated to render accurate statements of sales, and breached the contract by making false statements of sales. Since the cause of action at issue here does not allege the breach of a duty extraneous to, or distinct from the contract between the parties, Special Term properly dismissed that cause of action (see, North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403). Mangano, J. P., Thompson, Kunzeman and Sullivan, JJ., concur.