| Benedict Realty Co. v City of New York |
| 2007 NY Slip Op 09191 [45 AD3d 713] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Benedict Realty Co., Now Known as Benedict Richmond LLC,Appellant, v City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, AmyRothschild, and Tahirih M. Sadrieh of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, RichmondCounty (McMahon, J.), dated April 24, 2006, as granted those branches of its motion which werefor summary judgment on its causes of action to recover damages for use and occupancy andoperating expense escalations only to the extent of awarding it the principal sum of $80,900.50,denied those branches of its motion which were for summary judgment on the issue of liabilityon its causes of action alleging breach of contract and fraud, and granted those branches of thedefendant's cross motion which were for summary judgment dismissing the causes of actionalleging breach of contract and fraud.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant made a prima facie showing of entitlement to judgment as a matter of lawwith respect to the breach of contract cause of action based on the statute of frauds. The writingthe plaintiff relied on was a mere agreement to agree, which is unenforceable under the statute offrauds (see General Obligations Law § 5-703 [2]; Williamsburg Bus. Park v Brooklyn NavyYard Dev. Corp., 2 AD3d 439, 439-440 [2003]). In opposition, the plaintiff failed toraise a triable issue of fact. The plaintiff's reliance on the doctrine of part performance ismisplaced (see General Obligations Law § 5-703 [4]). That doctrine may beinvoked where a plaintiff's actions can be characterized as[*2]"unequivocally referable" to the alleged agreement (see MessnerVetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235-236[1999]; Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Burns v McCormick,233 NY 230, 232 [1922]). That is not the case at bar, where, among other things, the plaintiff'sactions were required by the provisions of a previous lease between the parties.
In addition, the defendant made a prima facie showing of entitlement to judgment as matterof law with respect to the fraud cause of action. In opposition, the plaintiff failed to raise a triableissue of fact. A cause of action alleging fraud does not lie where, as here, the only fraud claimrelates to an alleged breach of contract (see Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d1073, 1076-1077 [2007]; Ross vDeLorenzo, 28 AD3d 631, 636 [2006]).
Accordingly, the Supreme Court properly denied those branches of the plaintiff's motionwhich were for summary judgment on the issue of liability on its causes of action alleging breachof contract and fraud, and properly granted those branches of the defendant's cross motion whichwere for summary judgment dismissing those causes of action.
The plaintiff's remaining contentions are without merit. Miller, J.P., Lifson, Angiolillo andMcCarthy, JJ., concur. [See 11 Misc 3d 1086(A), 2006 NY Slip Op 50720(U).]