Freyne v. Xerox Corp.

98 A.D.2d 965, 470 N.Y.S.2d 187, 1983 N.Y. App. Div. LEXIS 21292

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1983
• Status: Published

Opinion

— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff instituted this action against Xerox and the individual defendants alleging several causes of action, including fraud and civil conspiracy. Both the corporate and the individual defendants moved at Special Term against the complaint under CPLR 3016 (subd [b]) and 3211 (subd [a], pars 2, 7, 8). They appeal from Special Term’s denial of their motion. Special Term erred in denying the individual defendants’ motion to dismiss plaintiff’s complaint. A review of the record fails to reveal any factual allegations that the individual defendants acted either outside the scope of their employment or for personal profit 0Citicorp Retail Servs. v Wellington Mercantile Seros., 90 AD2d 532; Di Nardo v L & W Ind. Park, 74 AD2d 736). Plaintiff’s cause of action for fraud with respect to certain alleged fraudulent representations contained in a temporary international assignment agreement and other representations relating to the payment of hotel expenses incurred in Toronto, Ontario, should have also been dismissed. These alleged fraudulent representations are, in essence, restatements of plaintiff’s contract cause of action and do not state separate causes of action in fraud (Charles v Onondaga Community Coll., 69 AD2d 144,148-149). Additionally, there is no substantive tort of civil conspiracy in New York (Danahy v Meese, 84 AD2d 670, 672); thus, plaintiff’s cause of action for civil conspiracy should have been dismissed. We have examined defendant’s other arguments and find them to be without merit. (Appeal from order of Supreme Court, Monroe County, Tillman, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.