| Gorman v Fowkes |
| 2012 NY Slip Op 05614 [97 AD3d 726] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Jason L. Gorman et al., Respondents, v William Fowkes,Also Known as Bill Fowkes, et al., Appellants. |
—[*1] Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, N.Y. (Sigmund S. Semon ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, aslimited by their notice of appeal and brief, from so much of an order of the Supreme Court,Suffolk County (Pitts, J.), dated June 15, 2011, as denied those branches of their motion whichwere pursuant to CPLR 3211 (a) (1) and (7) to dismiss the third and fourth causes of action andthat branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the second causeof action.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) (1) to dismissthe third and fourth causes of action, and substituting therefor provisions granting those branchesof the motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
A cause of action to recover damages for fraud will not lie where the only fraud claimedarises from the breach of a contract (seeSelinger Enters., Inc. v Cassuto, 50 AD3d 766, 768 [2008]; Tiffany at Westbury Condominium vMarelli Dev. Corp., 40 AD3d 1073, 1076-1077 [2007]). A mere misrepresentation of anintent to perform under the contract is insufficient to sustain a cause of action to recover damagesfor fraud (see Selinger Enters., Inc. v Cassuto, 50 AD3d at 768; WIT Holding Corp. vKlein, 282 AD2d 527, 528 [2001]). " 'Conversely, a misrepresentation of material fact, [that]is collateral to the contract and serves as an inducement for the contract, is sufficient to sustain acause of action alleging fraud' " (Selinger Enters., Inc. v Cassuto, 50 AD3d at 768,quoting WIT Holding Corp. v Klein, 282 AD2d at 528). Here, in support of their motion,the defendants submitted the parties' contract, which conclusively established that the allegedfraudulent misrepresentations at issue were not collateral or extraneous to the contract. Rather,the alleged misrepresentations amounted only to a misrepresentation of the intent or ability toperform under the contract. The plaintiffs' cause of action alleging fraud was wholly duplicativeof the breach of contract claim (see Tiffany at Westbury Condominium v Marelli Dev.Corp., 40 AD3d at 1077). Accordingly, the Supreme Court should have granted that branchof the defendants' motion which was pursuant to CPLR 3211 (a) (1) to dismiss the third cause ofaction alleging fraud.[*2]
The Supreme Court also should have granted that branchof the defendants' motion which was pursuant to CPLR 3211 (a) (1) to dismiss the fourth causeof action to recover an attorney's fee. The general rule is that "[a]n attorney's fee is merely anincident of litigation and is not recoverable absent a specific contractual provision or statutoryauthority" (Levine v Infidelity, Inc.,2 AD3d 691, 692 [2003]; see Blairv O'Donnell, 85 AD3d 954, 956 [2011]), although there are exceptions to this generalrule (see Matter of John T., 42AD3d 459, 463 [2007]; Harradine v Board of Supervisors of Orleans County, 73AD2d 118, 122 [1980]). Here, the contract did not provide for an award of an attorney's fee, andthe plaintiffs did not rely on any statutory provision in seeking such an award. The plaintiffsfailed to demonstrate the existence of "any lawful basis upon which such fees would berecoverable" (Dune Deck Owners Corp.v Liggett, 85 AD3d 1093, 1096 [2011]), and, accordingly, the Supreme Court shouldhave granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (1) todismiss the fourth cause of action, to recover attorney's fees.
Contrary to the defendants' contentions, the complaint sufficiently stated a cause of actionpursuant to Lien Law article 3-A (seegenerally Ippolito v TJC Dev., LLC, 83 AD3d 57 [2011]). Accordingly, the SupremeCourt properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a) (7) to dismiss the second cause of action pursuant to Lien Law article 3-A.
In light of our determination, we need not reach the defendants' remaining contentions.Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.