Jakobs v. Gambino

204 A.D.2d 397, 614 N.Y.S.2d 183, 1994 N.Y. App. Div. LEXIS 4806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1994
• Status: Published

Opinion

—In an action to recover damages for breach of a commercial lease, the defendants Gambino and Nasso appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated March 12, 1992, which granted the plaintiffs’ motion for summary judgment against them on the issue of liability.

Ordered that the order is modified by adding to the first decretal paragraph thereof after the word "liability” the words: "as to their second and third cause of action”, and by adding a new second decretal paragraph as follows: "ORDERED that the plaintiffs’ motion for summary judgment as to their first cause of action is denied and, upon searching the record, summary judgment is granted to the defendants Vittoria Gambino and Dr. Mary Nasso dismissing the plaintiffs’ first cause of action; and it is further,”; as so modified the order is affirmed, without costs or disbursements.

The plaintiffs’ first cause of action to recover damages for fraudulent misrepresentation should have been dismissed. "It is well settled that a cause of action seeking damages for fraud cannot be sustained when the only fraud charged relates to a breach of contract” (Nathanson & Co. v Marinello, 192 AD2d 575, 576; see also, Alizio v Perpignano, 176 AD2d 279). A review of the plaintiffs’ complaint demonstrates that the only fraud alleged in the first cause of action pertained to the breach of contract claims alleged in the second and third causes of action.

We find no merit to the appellants’ remaining contentions. Miller, J. P., Altman, Goldstein and Florio, JJ., concur.