Opinion
December 29, 1988
Appeal from the Supreme Court, New York (Martin B. Stecher, J.).
In its second cause of action, plaintiff alleges that the general partners, acting through defendants Martin Hecht and Jeffrey Stoler, made certain misrepresentations regarding the distribution of the proceeds of the sale of the subject property, a Holiday Inn motel in Georgetown, South Carolina. However, as the Supreme Court properly determined, the purported misrepresentation involved herein, specifically that plaintiff would receive a return of $850,000 as a result of the sale, does not support a claim for fraud since the oral promise was not enforceable and no justifiable reliance could be placed thereon. The fraud which the Supreme Court did deem adequate to state a cause of action, the promise of priority of payment, arises from defendants' failure to comply with section 9.02 of the partnership agreement and, thus, is founded in contract, not fraud. As this court held in Tesoro Petroleum Corp. v Holborn Oil Co. ( 108 A.D.2d 607), "[a] failure to perform promises of future acts is merely a breach of contract to be enforced by an action on the contract. A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract." Moreover, "[a] contract action may not be converted into one for fraud by the mere additional allegation that the contracting party did not intend to meet his contractual obligation" (Comtomark, Inc. v Satellite Communications Network, 116 A.D.2d 499, 500). Consequently, defendants are entitled to summary judgment dismissing the second cause of action.
Concur — Carro, J.P., Asch, Milonas and Wallach, JJ.