Opinion
December 16, 1983
Appeal from the Supreme Court, Monroe County, Tillman, J.
Present — Hancock, Jr., J.P., Doerr, Green, O'Donnell and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff instituted this action against Xerox and the individual defendants alleging several causes of action, including fraud and civil conspiracy. Both the corporate and the individual defendants moved at Special Term against the complaint under CPLR 3016 (subd [b]) and 3211 (subd [a], pars 2, 7, 8). They appeal from Special Term's denial of their motion. Special Term erred in denying the individual defendants' motion to dismiss plaintiff's complaint. A review of the record fails to reveal any factual allegations that the individual defendants acted either outside the scope of their employment or for personal profit ( Citicorp Retail Servs. v. Wellington Mercantile Servs., 90 A.D.2d 532; Di Nardo v. L W Ind. Park, 74 A.D.2d 736). Plaintiff's cause of action for fraud with respect to certain alleged fraudulent representations contained in a temporary international assignment agreement and other representations relating to the payment of hotel expenses incurred in Toronto, Ontario, should have also been dismissed. These alleged fraudulent representations are, in essence, restatements of plaintiff's contract cause of action and do not state separate causes of action in fraud ( Charles v Onondaga Community Coll., 69 A.D.2d 144, 148-149). Additionally, there is no substantive tort of civil conspiracy in New York ( Danahy v. Meese, 84 A.D.2d 670, 672); thus, plaintiff's cause of action for civil conspiracy should have been dismissed. We have examined defendant's other arguments and find them to be without merit.