Stewart v. Maitland

Appellate Division of the Supreme Court of New York

Stewart v. Maitland

39 A.D.3d 319, 835 N.Y.S.2d 39

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2007

StatusPublished

Cited by1 cases

This text of 39 A.D.3d 319 (Stewart v. Maitland) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stewart v. Maitland, 39 A.D.3d 319, 835 N.Y.S.2d 39 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 20, 2006, which, to the extent appealed from as limited by the briefs, dismissed the sixth and eighth causes of action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered February 21, 2006, unanimously dismissed, without costs, in light of the motion court’s recall of that order and its replacement with the later order.

The cause of action for fraud and negligent misrepresentation was duplicative of plaintiffs contract claim, inasmuch as it alleged no factual basis for recovery other than defendants’ failure to keep promises; no damages were sought thereunder that would not be recoverable under a contract measure of damages (see Coppola v Applied Elec. Corp., 288 AD2d 41 [2001]). In view of the dismissal of the fraud cause of action, there was no predicate for plaintiffs request to impose a constructive trust, that remedy being “fraud-rectifying” rather than “intent-enforcing” (Bazerman v Edwards, 295 AD2d 115 [2002]). Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

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Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 20, 2006, which, to the extent appealed from as limited by the briefs, dismissed the sixth and eighth causes of action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered February 21, 2006, unanimously dismissed, without costs, in light of the motion court’s recall of that order and its replacement with the later order.

The cause of action for fraud and negligent misrepresentation was duplicative of plaintiffs contract claim, inasmuch as it alleged no factual basis for recovery other than defendants’ failure to keep promises; no damages were sought thereunder that would not be recoverable under a contract measure of damages (see Coppola v Applied Elec. Corp., 288 AD2d 41 [2001]). In view of the dismissal of the fraud cause of action, there was no predicate for plaintiffs request to impose a constructive trust, that remedy being “fraud-rectifying” rather than “intent-enforcing” (Bazerman v Edwards, 295 AD2d 115 [2002]). Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

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Bluebook (online)

39 A.D.3d 319, 835 N.Y.S.2d 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-maitland-nyappdiv-2007.

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