Giannisis v. Maniatis

160 A.D.2d 629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1990
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (William J. Davis, J.), entered June 1, 1989, which granted defendant summary judgment dismissing plaintiff’s third cause of action, unanimously affirmed, without costs.

Plaintiff commenced the underlying action against defendant attorney alleging malpractice, breach of contract and fraud, respectively, based upon defendant’s representation of plaintiff in connection with the purchase of stock in a New Jersey restaurant corporation.

Plaintiff’s third cause of action for fraud was properly dismissed as it was directly related to the second cause of action for breach of contract. Where the alleged fraud relates to the cause of action for breach of contract, the fraud cannot be the basis for a separate cause of action (Miller v Volk & Huxley, 44 AD2d 810; see also, Brumbach v Rennsselaer Polytechnic Inst., 126 AD2d 841, 843).

Plaintiff’s motion for partial summary judgment on the second cause of action was properly denied since questions of fact exist as to whether defendant exercised reasonable care in representing plaintiff in the stock purchase agreement. The fact that defendant was not admitted to practice in New Jersey does not, on this record, in and of itself entitle plaintiff to recovery on the second cause of action as a matter of law. Concur—Murphy, P. J., Carro, Rosenberger, Asch and Rubin, JJ.