Todd Mart Grocery & Beverages, Inc. v. Bianchi

177 A.D.2d 939

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Defendants appeal from an order which denied their motion for summary judgment. They contend they are entitled to a dismissal of the complaint since no triable issues of fact exist warranting a trial, and that plaintiffs failed to establish a cause of action as a matter of law.

Upon our review of the record, we conclude that only plaintiffs’ fraud claim cannot be sustained in law or in fact. Plaintiffs have failed to establish that they relied on defendants’ alleged misrepresentation or were in any way deceived by it (see, Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407). The claim thereby lacks an essential element of fraud. Plaintiffs’ remaining causes of action are sufficiently pleaded and, as to those, the court properly found triable questions of fact. Accordingly, we modify the order to dismiss the fourth cause of action. (Appeal from Order of Supreme Court, Monroe County, Patlow, J.—Summary Judgment.) Present—Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.