J.E. Morgan Knitting Mills, Inc. v. Reeves Bros.

243 A.D.2d 422, 663 N.Y.S.2d 211, 1997 N.Y. App. Div. LEXIS 10844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Lewis Friedman, J.), entered June 20, 1996, which, insofar as appealed from as limited by plaintiffs’ brief, granted defendants’ motion to dismiss the cause of action for fraud for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiffs’ cause of action for fraud, which alleges that defendants knew at the time of contract execution that their warranty therein against undisclosed liabilities burdening the property was false, was properly dismissed as duplicative of plaintiffs’ cause of action for breach of contract. The fraud alleged is based on the same facts as underlie the contract claim and is not collateral to the contract and no damages are alleged that would not be recoverable under a contract measure of damages (cf., Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954; Big Apple Car v City of New York, 234 AD2d 136, 138, distinguishing Graubard Molten Dannett & Horowitz v Moskovitz, 86 NY2d 112, 122; see also, Papa’s-June Music v McLean, 921 F Supp 1154, 1161-1162). Concur—Sullivan, J. P., Milonas, Wallach, Williams and Colabella, JJ.