Zachariou v. Manios

50 A.D.3d 257, 854 N.Y.S.2d 694

Opinion

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 7, 2007, which, to the extent appealed from as limited by the briefs and by a stipulation of discontinuance, dismissed plaintiffs causes of action for fraud, negligent misrepresentation, and conspiracy, unanimously affirmed, with costs.

The causes of action for fraud and negligent misrepresentation either fell under the 1999 Greek Agreement or the London Agreement, which both contain mandatory Greek forum selection clauses (see Micro Balanced Prods. Corp. v Hlavin Indus., 238 AD2d 284, 285 [1997]), or were based upon conduct “innate to the performance of the contract” and thus encompassed in the breach of contract cause of action (McMahan & Co. v Bass, 250 AD2d 460, 462-463 [1998], lv dismissed in part and denied in part 92 NY2d 1013 [1998]).

There is no independent cause of action for civil conspiracy (Bronx-Lebanon Hosp. Ctr. v Wiznia, 284 AD2d 265, 266 [2001], lv dismissed 97 NY2d 653 [2001]).

Based on plaintiffs claim that she has not completed the accounting and report required under the U.S. Agreement because of defendant’s alleged defaults in providing books and records, pursuant to section 10 of the U.S. Agreement, any award of compensatory damages must be determined by the arbitrator. Concur—Lippman, EJ, Tom, Williams and Acosta, JJ. [See 2007 NY Slip Op 31072(U).]