Summary
granting motion to dismiss fraud claim where plaintiff alleged that "defendant never intended to carry out its promises contained in a contract for renovation of the building"
Summary of this case from EQT Infrastructure Ltd. v. SmithOpinion
April 2, 1996
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
Plaintiff alleged in his cause of action for fraud that defendant never intended to carry out its promises contained in a contract for renovation of the building in which plaintiff resides. The IAS Court correctly granted defendant's motion to dismiss that cause of action since "[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; Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 614; see, Briefstein v. Rotondo Constr. Co., 8 A.D.2d 349). Plaintiff's affidavit in opposition to the motion, alleging that defendant did not intend to perform in accordance with a set of building plans that was incorporated by reference in the contract, did not convert plaintiff's breach of contract claim into one for fraud.
Concur — Rosenberger, J.P., Wallach, Kupferman, Nardelli and Williams, JJ.