Ellis v. Whippo

Appellate Division of the Supreme Court of New York

Ellis v. Whippo

262 A.D.2d 1055, 692 N.Y.S.2d 279, 1999 N.Y. App. Div. LEXIS 7302

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1999

StatusPublished

Cited by3 cases

This text of 262 A.D.2d 1055 (Ellis v. Whippo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellis v. Whippo, 262 A.D.2d 1055, 692 N.Y.S.2d 279, 1999 N.Y. App. Div. LEXIS 7302 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of the motion of defendant Fairmont Homes, Inc., a/k/a Century Homes (Fairmont), seeking dismissal of the negligence causes of action against it. Because the complaint alleges only economic loss, plaintiffs are relegated to their contractual remedies (see, Bocre Leasing Corp. v General Motors Corp., 84 NY2d 685, 689-690; Antel Oldsmobile-Cadillac v Sirus Leasing Co., 101 AD2d 688, 689).

The court further erred in granting the cross motion of plaintiffs for leave to amend the complaint and in denying that part of the motion of Fairmont seeking dismissal of the fraud causes of action against it. “The addition of an allegation of sci-enter will not transform a breach of contract action into one to recover damages for fraud” (Geller v Esikoff, 165 AD2d 863, 865-866). It is an abuse of discretion to grant leave when the amendment is patently without merit (see, Washburn v Citibank [S. D.], 190 AD2d 1057; Lachajczyk v Schriber, 155 AD2d 874). Because plaintiffs Perry T. Egbert and Marcy L. Egbert allege that they purchased their prefabricated home from a different manufacturer, that part of the motion of Fairmont seeking dismissal of the Egbert causes of action against it should have been granted. Finally, we agree with plaintiffs that the court did not abuse its discretion in denying Fairmont’s motion for a severance without prejudice to renew after completion of discovery (see, CPLR 603).

We modify the order, therefore, by granting the motion of Fairmont in part and dismissing the fraud and negligence causes of action and the Egbert causes of action in their entirety against it and by denying plaintiffs’ cross motion for leave, to amend the complaint. (Appeal from Order of Supreme Court, Cattaraugus County, Himelein, J. — Dismiss Pleading.) Present — Pine, J. P., Lawton, Pigott, Jr., Hurlbutt and Scudder, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of the motion of defendant Fairmont Homes, Inc., a/k/a Century Homes (Fairmont), seeking dismissal of the negligence causes of action against it. Because the complaint alleges only economic loss, plaintiffs are relegated to their contractual remedies (see, Bocre Leasing Corp. v General Motors Corp., 84 NY2d 685, 689-690; Antel Oldsmobile-Cadillac v Sirus Leasing Co., 101 AD2d 688, 689).

The court further erred in granting the cross motion of plaintiffs for leave to amend the complaint and in denying that part of the motion of Fairmont seeking dismissal of the fraud causes of action against it. “The addition of an allegation of sci-enter will not transform a breach of contract action into one to recover damages for fraud” (Geller v Esikoff, 165 AD2d 863, 865-866). It is an abuse of discretion to grant leave when the amendment is patently without merit (see, Washburn v Citibank [S. D.], 190 AD2d 1057; Lachajczyk v Schriber, 155 AD2d 874). Because plaintiffs Perry T. Egbert and Marcy L. Egbert allege that they purchased their prefabricated home from a different manufacturer, that part of the motion of Fairmont seeking dismissal of the Egbert causes of action against it should have been granted. Finally, we agree with plaintiffs that the court did not abuse its discretion in denying Fairmont’s motion for a severance without prejudice to renew after completion of discovery (see, CPLR 603).

We modify the order, therefore, by granting the motion of Fairmont in part and dismissing the fraud and negligence causes of action and the Egbert causes of action in their entirety against it and by denying plaintiffs’ cross motion for leave, to amend the complaint. (Appeal from Order of Supreme Court, Cattaraugus County, Himelein, J. — Dismiss Pleading.) Present — Pine, J. P., Lawton, Pigott, Jr., Hurlbutt and Scudder, JJ.

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262 A.D.2d 1055, 692 N.Y.S.2d 279, 1999 N.Y. App. Div. LEXIS 7302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-whippo-nyappdiv-1999.

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