| Introna v Huntington Learning Ctrs., Inc. |
| 2010 NY Slip Op 08533 [78 AD3d 896] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Mario Introna, Respondent, v Huntington LearningCenters, Inc., et al., Appellants. |
—[*1]
In an action to recover damages for fraud, breach of contract, and negligent infliction ofmental distress, the defendants appeal from an order of the Supreme Court, Richmond County(McManon, J.), dated March 30, 2010, which denied their motion pursuant to CPLR 3211 (a) (7)to dismiss the first cause of action to recover damages for fraud and the third cause of action torecover damages for negligent infliction of mental distress, with leave to renew after thecompletion of discovery.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the thirdcause of action to recover damages for negligent infliction of mental distress, with leave to renewafter the completion of discovery, and substituting therefor a provision granting that branch ofthe motion; as so modified, the order is affirmed, without costs or disbursements.
When determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading must beafforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83,87 [1994]). The facts as alleged in the complaint are accepted as true, with the plaintiff accordedthe benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88).
In the verified complaint, the plaintiff alleged that when his son, Mario Introna (hereinafterthe child), was in first grade, he sought "individualized learning and education assistance" fromthe defendant Huntington Learning Corporation (hereinafter Huntington), a franchisee of thedefendant Huntington Learning Centers, Inc. (hereinafter the franchisor), to ameliorate the child'sdyslexia. On July 25, 2007, the plaintiff entered into a contract with Huntington, wherebyHuntington would provide 274 hours of classroom instruction to the child at a rate of $54 perhour. The complaint further alleged that, during that period, Huntington refused to provide theplaintiff with copies of the child's test scores and interim progress reports. The plaintiff claimedthat he spent "no less than" $25,000 for Huntington's services, and, as a result of Huntington'sinstruction, the child "receives therapy to cope with this learning disability and [*2]depression, which both progressively worsened."
In the first cause of action to recover damages for "fraudulent misrepresentation," theplaintiff alleged, inter alia, that Huntington misrepresented that all of its instructors were"licensed teachers and certified to provide the proper instruction" when it knew they were not,and that it knowingly made other misrepresentations in the contract and other materials providedto the plaintiff. In the second cause of action to recover the sum of $25,000 in compensatorydamages for breach of contract, the plaintiff alleged that Huntington breached its contract toprovide a one-to-one teacher-student ratio, and no more than a four-to-one teacher-student ratio,when it provided services at an eight-to-one teacher-student ratio, that Huntington breached itscontract to provide test scores and interim progress reports, and that Huntington advised thechild's parents that he was progressing well when that was not the case. In the third cause ofaction to recover damages for negligent infliction of mental distress, the plaintiff alleged that, asa result of the deficient instruction, and Huntington's failure to advise the child's parents that herequired other services, the child suffered emotional trauma and a worsening of his learningdisability "to the point of irreparable harm," resulting in anxiety and depression requiringtherapy.
The defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action torecover damages for fraud and the third cause of action to recover damages for negligentinfliction of mental distress. In opposition, the plaintiff contended that the first cause of actionstated a viable claim for damages for fraudulent inducement to enter into the contract, which wasnot duplicative of the cause of action sounding in breach of contract because themisrepresentations "were not based on a failure to perform future acts under the contract, butrather a misrepresentation of existing circumstances." The plaintiff further asserted that, takingall of the allegations in the complaint as true, he stated a cause of action sounding in negligentinfliction of mental distress, since he alleged that, as a result of the defendants' conduct, the childsuffered actual mental injury requiring medical treatment. In the order appealed from, TheSupreme Court denied the defendants' motion "with leave to renew after discovery."
The elements of a cause of action sounding in fraud are a material misrepresentation of anexisting fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiablereliance upon the misrepresentation, and damages (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553,559 [2009]). General allegations that a defendant entered into a contract with the intent not toperform are insufficient to support a cause of action sounding in fraud (see New York Univ. vContinental Ins. Co., 87 NY2d 308, 318 [1995]).
However, a misrepresentation of a material fact which is collateral to the contract and servesas an inducement to enter into the contract is sufficient to sustain a cause of action sounding infraud (see Selinger Enters., Inc. vCassuto, 50 AD3d 766, 768 [2008]; WIT Holding Corp. v Klein, 282 AD2d527, 528 [2001]). Further, a cause of action sounding in fraud is not duplicative of a cause ofaction to recover damages for breach of contract where the plaintiff sues individuals who werenot parties to the contract, and seeks compensatory damages which are not recoverable for breachof contract (see Selinger Enters., Inc. v Cassuto, 50 AD3d at 768; cf. Linea Nuova, S.A. v Slowchowsky,62 AD3d 473 [2009]).
In the instant case, the contract, referred to as the "General Enrollment Form," and the othermaterials which, although apparently not a part of the contract, purportedly contained fraudulentmisrepresentations, are not part of the record. Therefore, we cannot ascertain which allegedmisrepresentations are part of the contract and which are not. The complaint did not allege thatthe alleged misrepresentation that the persons giving instruction would be licensed teacherscertified to provide instruction was part of the contract; this could constitute an assertion of amaterial fact collateral to the contract which served as an inducement to enter into the contract(see Selinger Enters., Inc. v Cassuto, 50 AD3d at 768; WIT Holding Corp. vKlein, 282 AD2d at 528). Misrepresentations included in brochures and other materials, andnot in the contract itself, may constitute the basis of a cause of action sounding in fraud (see Board of Mgrs. of Marke GardensCondominium v 240/242 Franklin Ave., LLC, 71 AD3d 935 [2010]). Accordingly, theSupreme Court properly denied that branch of the defendants' motion which was to dismiss thefirst cause of action to recover damages for fraud.[*3]
However, the third cause of action seeking to recoverdamages for "negligent infliction of mental distress" is in actuality a cause of action sounding ineducational malpractice, which is not cognizable in this State (see McGovern v Nassau County Dept. ofSocial Servs., 60 AD3d 1016, 1017 [2009]; Suriano v Hyde Park Cent. SchoolDist., 203 AD2d 553, 554 [1994]; Sitomer v Half Hollow Hills Cent. School Dist.,133 AD2d 748, 749 [1987]; Village Community School v Adler, 124 Misc 2d 817, 818[1984]). Accordingly, the third cause of action sounding in negligent infliction of mental distressmust be dismissed.
The parties' remaining contentions are without merit or need not be addressed in light of ourdetermination. Rivera, J.P., Angiolillo, Roman and Sgroi, JJ., concur.