Sisters of Divine Compassion v. Pace University

Appellate Division of the Supreme Court of New York

Sisters of Divine Compassion v. Pace University

230 A.D.2d 904, 646 N.Y.S.2d 713, 1996 N.Y. App. Div. LEXIS 8682

Appellate Division of the Supreme Court of the State of New York·Decided August 26, 1996·Published·Cited by 2 cases

Opinion

—In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered [905] July 18, 1995, as denied its cross motion to dismiss the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of the defendant’s cross motion which was to dismiss the cause of action sounding in fraud, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A cause of action to recover damages for fraud cannot stand where the fraud alleged relates to a breach of contract. Therefore, the plaintiff’s cause of action sounding in fraud must be dismissed (see, Brenner v DeBruin, 186 AD2d 701; McKernin v Fanny Farmer Candy Shops, 176 AD2d 233; Tuck Indus. v Reichold Chems., 151 AD2d 565). With respect to the remaining causes of action, the defendant has not made a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557).

O’Brien, J. P., Thompson, Altman and Krausman, JJ., concur.

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—In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered [905] July 18, 1995, as denied its cross motion to dismiss the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of the defendant’s cross motion which was to dismiss the cause of action sounding in fraud, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A cause of action to recover damages for fraud cannot stand where the fraud alleged relates to a breach of contract. Therefore, the plaintiff’s cause of action sounding in fraud must be dismissed (see, Brenner v DeBruin, 186 AD2d 701; McKernin v Fanny Farmer Candy Shops, 176 AD2d 233; Tuck Indus. v Reichold Chems., 151 AD2d 565). With respect to the remaining causes of action, the defendant has not made a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557).

O’Brien, J. P., Thompson, Altman and Krausman, JJ., concur.

Sisters of Divine Compassion v. Pace University, 230 A.D.2d 904, 646 N.Y.S.2d 713, 1996 N.Y. App. Div. LEXIS 8682 (N.Y. Ct. App. 1996).

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Opinion

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