Opinion
March 30, 1987
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the order is modified, by adding a provision thereto granting leave to the plaintiff to serve a second amended complaint as to the first cause of action only; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; the plaintiff's time to serve the second amended complaint is extended until 20 days after service upon it of a copy of this decision and order, with notice of entry.
While the plaintiff's first cause of action sounding in fraud as set forth in the amended complaint was sufficiently pleaded to withstand a motion to dismiss (see, Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954; Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403; Sabo v. Delman, 3 N.Y.2d 155), the amended complaint fails to assert proper damages compensable for fraud. Victims of fraud may only recover their actual pecuniary loss sustained as a result of their reliance on the alleged misrepresentation, i.e., their "out of pocket" losses (see, Dress Shirt Sales v. Hotel Martinique Assocs., 12 N.Y.2d 339, 343; Clearview Concrete Prods. Corp. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 467-468; see also, Spencer, White Prentis v. Southwest Sewer Dist., 103 A.D.2d 802, 804; Castle Cooke v Lincoln Mdse. Corp., 103 A.D.2d 763, 764). In further amending its complaint, the plaintiff must set forth the actual, out of pocket, pecuniary loss allegedly sustained as a result of its justifiable reliance on the defendants' purported misrepresentations (see, Castle Cooke v. Lincoln Mdse. Corp., supra, at 764).
Trial Term correctly dismissed the plaintiff's second and third causes of action as set forth in the amended complaint (see, General Obligations Law § 5-701 [a] [10]; Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 267; Newman v. Crazy Eddie, 119 A.D.2d 738; Cartier v. Lear Siegler, Inc., 115 A.D.2d 584; cf., Fox Co. v. Kaufman Org., 128 A.D.2d 587; Ackerman v. Landes, 112 A.D.2d 1081, 1082; Richman v. Federated Adj. Co., 95 A.D.2d 850, 851). Brown, J.P., Lawrence, Eiber and Sullivan, JJ., concur.