Erk v. HealthNow New York, Inc.

Appellate Division of the Supreme Court of New York

Erk v. HealthNow New York, Inc.

305 A.D.2d 1120, 758 N.Y.S.2d 565, 2003 N.Y. App. Div. LEXIS 4774

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

DecidedMay 2, 2003

StatusPublished

This text of 305 A.D.2d 1120 (Erk v. HealthNow New York, Inc.) 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

Erk v. HealthNow New York, Inc., 305 A.D.2d 1120, 758 N.Y.S.2d 565, 2003 N.Y. App. Div. LEXIS 4774 (N.Y. Ct. App. 2003).

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Opinion

—Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered January 9, 2003, which, inter alia, denied plaintiffs’ cross motion for leave to serve a third amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: As limited by their brief, plaintiffs appeal from that part of an order denying their cross motion seeking leave to serve a third amended complaint. Supreme Court properly determined that the allegations of fraud contained in the proposed third amended complaint relate to defendants’ alleged breach of the obligations under the contracts with plaintiffs and thus that a separate cause of action for fraud is not stated (see Towne Ford v Marowski, 251 AD2d 1075, 1076 [1998]; cf. Deerfield Communications Corp. v ChesebroughPonds, Inc., 68 NY2d 954, 956 [1986]; First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 291-292 [1999]). Thus, we conclude that the court did not abuse its discretion in denying plaintiffs’ cross motion (see generally Fingerlakes Chiropractic v Maggio, 269 AD2d 790, 791 [2000]). Present — Green, J.P., Wisner, Scudder and Kehoe, JJ.

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—Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered January 9, 2003, which, inter alia, denied plaintiffs’ cross motion for leave to serve a third amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: As limited by their brief, plaintiffs appeal from that part of an order denying their cross motion seeking leave to serve a third amended complaint. Supreme Court properly determined that the allegations of fraud contained in the proposed third amended complaint relate to defendants’ alleged breach of the obligations under the contracts with plaintiffs and thus that a separate cause of action for fraud is not stated (see Towne Ford v Marowski, 251 AD2d 1075, 1076 [1998]; cf. Deerfield Communications Corp. v ChesebroughPonds, Inc., 68 NY2d 954, 956 [1986]; First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 291-292 [1999]). Thus, we conclude that the court did not abuse its discretion in denying plaintiffs’ cross motion (see generally Fingerlakes Chiropractic v Maggio, 269 AD2d 790, 791 [2000]). Present — Green, J.P., Wisner, Scudder and Kehoe, JJ.

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Bluebook (online)

305 A.D.2d 1120, 758 N.Y.S.2d 565, 2003 N.Y. App. Div. LEXIS 4774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erk-v-healthnow-new-york-inc-nyappdiv-2003.

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