Matter of Schulman v Greenwich Assoc., LLC

2008 NY Slip Op 04942

Decided on June 3, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 3, 2008
Andrias, J.P., Gonzalez, Moskowitz, DeGrasse, JJ.
3810 103028/04 590818/06






Gallet Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz
of counsel). for appellants.
Lederman Abrahams & Lederman, LLP, Massapequa (Bruce
H. Lederman of counsel), for respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 24, 2007, which, to the extent appealed from, granted the motion to dismiss the complaint as against defendant Wallach and denied plaintiffs' cross motion to amend the complaint, unanimously affirmed, without costs.

Plaintiffs failed to plead fraud with the requisite specificity (CPLR 3016[b]), and their proposed amended complaint fails to cure this deficiency. The causes of action for fraud and fraud in the inducement merely allege that defendants did not intend to properly perform the construction contemplated in the contract. This is insufficient. "While a party who is fraudulently induced to enter into a contract may join a cause of action for fraud with one for breach of the same contract, it may do so only if the misrepresentations alleged consist of more than mere promissory statements about what is to be done in the future," and the alleged misrepresentations "must be misstatements of material fact or promises made with a present, but undisclosed intent not to perform them" (Eastman Kodak Co. v Roopak Enters., 202 AD2d 220, [*2]222 [1994]). Plaintiffs have failed to allege what misrepresentations, if any, were made by the individual defendant, and have not asserted any allegations that would warrant imposing individual liability upon him.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 3, 2008

CLERK