| Bella Maple Group, Inc. v Attias |
| 2010 NY Slip Op 08882 [78 AD3d 1092] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Bella Maple Group, Inc., Appellant-Respondent, v AmramAttias et al., Respondents-Appellants, et al., Defendants. |
—[*1] Klein & Vizzi, LLP, West Babylon, N.Y. (John J. Vizzi of counsel), forrespondents-appellants.
In an action, inter alia, to recover damages for fraud, breach of contract, and breach ofwarranty, the plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Molia, J.), dated September 2, 2008, as denied its motion for summaryjudgment on the issue of liability, and the defendants Amram Attias and A.V., LLC, cross-appealfrom so much of the same order as denied their cross motion for summary judgment dismissingthe complaint insofar as asserted against them and for summary judgment on their counterclaimfor rent arrears.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of the defendants Amram Attias and A.V., LLC, which was forsummary judgment dismissing the first cause of action of the complaint insofar as assertedagainst them, and substituting therefor a provision granting that branch of the cross motion; as somodified, the order is affirmed insofar as appealed and cross-appealed from, with costs to thedefendants Amram Attias and A.V., LLC.
No cause of action to recover damages for fraud will arise when the only fraud alleged relatesto a breach of contract (see Marlowe v Ferrari of Long Is., Inc., 61 AD3d 645 [2009];Carle Place Union Free School Dist. v Bat-Jac Constr., Inc., 28 AD3d 596, 598-599[2006]; Marshel v Farley, 21 AD3d 935 [2005]; 34-35th Corp. v 1-10 Indus.Assoc., 2 AD3d 711, 712 [2003]; Guerrera v Foundation Tit. & Escrow Corp., 303AD2d 456 [2003]). Accordingly, the Supreme Court should have granted that branch of the crossmotion of the defendants Amram Attias and A.V., LLC (hereinafter together the defendants),which was to dismiss the first cause of action insofar as asserted against them.
However, the Supreme Court properly denied the remaining branches of the defendants' crossmotion and the plaintiff's motion for summary judgment. The plaintiff demonstrated its primafacie entitlement to judgment as a matter of law on its remaining causes of action alleging breachof contract and breach of warranty by submitting evidence that the premises [*2]leased from the defendants could not be lawfully used for foodservices, as warranted in the lease between the parties. In opposition, the defendants raised atriable issue of fact as to whether the plaintiff could have lawfully used the premises for foodservices (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiff's remaining contention is not properly before this Court.
The defendants' remaining contentions are without merit. Mastro, J.P., Dickerson, Eng andLott, JJ., concur.