| Marcantonio v Picozzi |
| 2010 NY Slip Op 00822 [70 AD3d 655] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Michael Marcantonio et al., Appellants, v Michael Picozzi,III, et al., Respondents. |
—[*1] Azzolini & Benedetti, LLC, New York, N.Y. (Thomas Benedetti of counsel), forrespondents Michael Picozzi, III, and Viola, Benedetti, Azzolini & Morano, LLC. McCarthy & Carbone, P.C., Hauppauge, N.Y. (Patrick C. McCarthy of counsel), forrespondents Project Real Estate, Inc., and John McHugh.
In an action, inter alia, to recover damages for fraud, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), datedSeptember 3, 2008, as granted the motion of the defendants Michael Picozzi III, and Viola,Benedetti, Azzolini & Morano, LLC, pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against them, as, in effect, denied, as academic, that branch of their crossmotion which was to compel the defendants Michael Picozzi III, and Viola, Benedetti, Azzolini& Morano, LLC, to answer interrogatories and as, in effect, denied that branch of their crossmotion which was to compel the defendants Project Real Estate, Inc., and John McHugh toanswer interrogatories.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
Affording the complaint a liberal construction, accepting all facts as alleged in the complaintto be true, and according the plaintiffs the benefit of every favorable inference as required on amotion to dismiss pursuant to CPLR 3211 (a) (7), the complaint fails to state a cause of actionagainst the defendants Michael Picozzi III, and Viola, Benedetti, Azzolini & Morano, LLC(hereinafter the law firm) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Reichenbaum v Cilmi, 64 AD3d693, 694 [2009]). "In order to recover damages for fraud, the fraud alleged cannot relate to abreach of contract" (Kaufman vTorkan, 51 AD3d 977, 980 [2008]), and the plaintiff must allege a legal dutyindependent of the contract itself (seeHeffez v L & G Gen. Constr., Inc., 56 AD3d 526 [2008]; Ka Foon Lo v Curis, 29 AD3d525, 526 [2006]; Sforza v Health Ins. Plan of Greater N.Y., 210 AD2d 214 [1994]).
Here, the plaintiffs allege that an attorney in the law firm, acting as escrowee in a real estatetransaction between the plaintiffs and Picozzi, misrepresented in the contract of sale that he hadreceived Picozzi's down payment when, in fact, the down payment was not deposited into thelaw firm's trust [*2]account until a later date. The transaction wassubsequently closed and the deed delivered. Inasmuch as the alleged falsity was a provision ofthe contract of sale, the plaintiffs' cause of action to recover damages for fraud is actually a causeof action to recover damages for breach of contract (see Ka Foon Lo v Curis, 29 AD3d at526; RR Chester, LLC v ArlingtonBldg. Corp., 22 AD3d 652, 654 [2005]; Sforza v Health Ins. Plan of GreaterN.Y., 210 AD2d at 214-215). Since title to the property has closed and the deed delivered,the plaintiffs' claims arising from the contract of sale have been extinguished by the doctrine ofmerger (see Sentlowitz v Cardinal Dev.,LLC, 63 AD3d 1137, 1138 [2009]; Ka Foon Lo v Curis, 29 AD3d at 526).
Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted againstPicozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motionwhich was to compel those defendants to answer interrogatories. As to the defendants ProjectReal Estate, Inc., and John McHugh, their response to interrogatories was properly stayedpending determination of their motion for summary judgment (see CPLR 3214 [b]).
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Dickerson, Eng andSgroi, JJ., concur. [Prior Case History: 2008 NY Slip Op 32482(U).]