| Fromowitz v W. Park Assoc., Inc. |
| 2013 NY Slip Op 03633 [106 AD3d 950] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Gary Fromowitz, Respondent, v W. ParkAssociates, Inc., Doing Business as West Park Associates, Inc., et al.,Appellants. |
—[*1] The Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Jamie D. Svenson ofcounsel), for respondent.
In an action to recover damages for fraudulent inducement, fraud, and breach ofcontract, the defendants appeal, by permission, from an order of the Appellate Term ofthe Supreme Court for the Ninth and Tenth Judicial Districts, dated August 5, 2011,which affirmed an order of the District Court, Nassau County (Phoenix, J.), datedFebruary 22, 2010, denying those branches of their motion which were pursuant toCPLR 3211 (a) (7) to dismiss the first and second causes of action.
Ordered that the order dated August 5, 2011, is reversed, on the law, with costs,those branches of the defendants' motion which were pursuant to CPLR 3211 (a) (7) todismiss the first and second causes of action are granted, and the order of the DistrictCourt, Nassau County, dated February 22, 2010, is modified accordingly.
On August 7, 1995, the plaintiff entered into a contract with the defendant ThomasFlanagan, as president of the defendant W. Park Associates, Inc., doing business as WestPark Associates, Inc. (hereinafter WPA), a home improvement contracting company, torenovate his home and construct an addition. The contract provisions obligated WPA toinstall a new roof both on the existing portion of plaintiff's home and on the addition thatwas to be constructed. Pursuant to the terms of the contract, WPA was to use "30-yeararchitectural roof shingles" when installing the roof. In May 2009, approximately 14years after the parties executed the subject contract, the roof experienced a substantialleak. The plaintiff was informed by other roofers that WPA had used an inferior roofingshingle when installing the roof, instead of the 30-year architectural roof shingle aspromised.
In July 2009, the plaintiff commenced this action against WPA and Flanagan torecover damages for fraudulent inducement (first cause of action), fraud (second cause ofaction), and breach of contract (third cause of action). The defendants moved, inter alia,to dismiss the first and second causes of action for failure to state a cause of action. In anorder dated February 22, [*2]2010, the District Courtdenied those branches of the defendants' motion which were to dismiss the first andsecond causes of action, which sounded in fraudulent inducement and fraud,respectively. The Appellate Term of the Supreme Court for the Ninth and Tenth JudicialDistricts (hereinafter the Appellate Term) affirmed the District Court's order.
"The elements of a cause of action sounding in fraud are a material misrepresentationof an existing fact, made with knowledge of the falsity, an intent to induce reliancethereon, justifiable reliance upon the misrepresentation, and damages" (Introna v Huntington LearningCtrs., Inc., 78 AD3d 896, 898 [2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d553, 559 [2009]; CircleAssoc., L.P. v Starlight Props., Inc., 98 AD3d 596, 598 [2012]; Whitehead v Town House Equities,Ltd., 8 AD3d 367, 368 [2004]). However, "a cause of action premised uponfraud cannot lie where it is based on the same allegations as the breach of contract claim"(Heffez v L & G Gen. Constr.,Inc., 56 AD3d 526, 527 [2008]; see Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755,757 [2009]). Where a claim to recover damages for fraud is premised upon an allegedbreach of contractual duties, and the allegations with respect to the purported fraud donot concern representations which are collateral or extraneous to the terms of the parties'agreement, a cause of action sounding in fraud does not lie (see Yenrab, Inc. v 794Linden Realty, LLC, 68 AD3d at 757). Further, "[g]eneral allegations that defendantentered into a contract while lacking the intent to perform it are insufficient to support [a]claim" of fraudulent inducement (New York Univ. v Continental Ins. Co., 87NY2d 308, 318 [1995]; seeRefreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d913, 914 [2011]) or fraud (see Marlowe v Ferrari of Long Is., Inc., 61 AD3d 645, 646[2009]; WIT Holding Corp. v Klein, 282 AD2d 527, 528 [2001]).
Here, the allegations upon which the causes of action sounding in fraud andfraudulent inducement are based are the same as those underlying the cause of actionalleging breach of contract. The allegations that Flanagan and WPA fraudulentlyrepresented that WPA would use specific roof shingles "amount to nothing more thanallegations of a misrepresentation of an intention to perform under the contract"(Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d at 758; see WIT HoldingCorp. v Klein, 282 AD2d at 528-529; see e.g. Gorman v Fowkes, 97 AD3d 726 [2012]).Accordingly, the Appellate Term improperly affirmed the order of the District Courtdenying those branches of the defendants' motion which were pursuant to CPLR 3211 (a)(7) to dismiss the first and second causes of action.
The defendants' remaining contentions are not properly before this Court. Mastro,J.P., Lott, Austin and Sgroi, JJ., concur.