| McGee v J. Dunn Constr. Corp. |
| 2008 NY Slip Op 07221 [54 AD3d 1010] |
| September 30, 2008 |
| Appellate Division, Second Department |
| James McGee et al., Appellants, v J. Dunn ConstructionCorp. et al., Respondents. |
—[*1] Minotti Law Office, PLLC, Stormville, N.Y. (Thomas Minotti of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Dutchess County (Dolan,J.), dated September 24, 2007, as denied those branches of their motion which were to dismissthe defendants' first and second counterclaims pursuant to CPLR 3211 (a) (5) and so much of thethird counterclaim as sought compensatory damages pursuant to CPLR 3211 (a) (7).
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiffs' motion which was to dismiss so much of the third counterclaim as soughtcompensatory damages pursuant to CPLR 3211 (a) (7), and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The Supreme Court correctly concluded that the determination of the Justice Court was notentitled to res judicata effect (see UJCA 1808; Katzab v Chaudhry, 48 AD3d 428 [2008]). However, the SupremeCourt should have granted that branch of the plaintiffs' motion which was to dismiss so much ofthe defendants' third counterclaim as sought compensatory damages pursuant to CPLR 3211 (a)(7). A cause of action to recover damages for fraud does not lie where the only fraud claimedrelates to an alleged breach of contract (see Gibraltar Mgt. Co., Inc. v Grand Entrance Gates, Ltd., 46 AD3d747, 749 [2007]). A general allegation that the opposing party entered into the contract whilelacking the intent to perform is insufficient to state a cause of action to recover [*2]damages for fraud (see New York Univ. v Continental Ins. Co.,87 NY2d 308, 318 [1995]; Rocchiov Biondi, 40 AD3d 615, 617 [2007]; Place v Ginsburg, 280 AD2d 656, 657[2001]). Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.