Wagner Trading Co. v. Tony Walker Retail Management Co.

277 A.D.2d 1012, 715 N.Y.S.2d 673, 2000 N.Y. App. Div. LEXIS 11640

Opinion

—Order unanimously affirmed without costs. Memorandum: The only issue briefed by defendants is whether Supreme Court erred in denying that part of defendants’ motion seeking to dismiss the fourth cause of action, sounding in fraud. Thus, the remaining issues raised in the notice of appeal are deemed abandoned (see, Ciesinski v Town of Aurora, 202 AD2d 984). We reject defendants’ contention that the allegations supporting the fourth cause of action are premised on the alleged breach of contractual duties. “ ‘[A] contractual promise made with the undisclosed intention not to perform it constitutes fraud’ ” (Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538, 543, quoting Sabo v Delman, 3 NY2d 155, 162; see, Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956). Plaintiff sufficiently alleged that defendants made false promises with the undisclosed intention not to perform them, thereby inducing plaintiff to enter into the contractual relationship (see, Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 122). Thus, the court properly denied that part of defendants’ motion with respect to the fourth cause of action. (Appeal from Order of Supreme Court, Erie County, Fahey, J. — Dismiss Pleading.) Present — Pine, J. P., Hayes, Wisner and Kehoe, JJ.