Opinion
March 23, 1981
In an action, inter alia, on a contract, defendants appeal from so much of an order of the Supreme Court, dated May 5, 1980 and entered in Westchester County, as denied their motion to dismiss the causes of action asserted in the complaint. Order modified, on the law, by deleting the provision which denied the motion to dismiss as to the second cause of action and substituting a provision granting the motion as to said cause of action. As so modified, order affirmed insofar as appealed from, without costs or disbursements. In the second cause of action, which is based on fraud, plaintiff failed to allege either a present intent to defraud on the part of defendants, or factual assertions from which such an intent could be inferred. Accordingly, its cause of action for fraud should have been dismissed (see Lanzi v. Brooks, 43 N.Y.2d 778; Harris v Camilleri, 77 A.D.2d 861). The causes of action based on breach of the deferred payment agreement were properly allowed to stand. When a contract fixes no time for performance, an agreement that performance shall take place within a reasonable time will be inferred (see City of New York v. New York Cent. R.R. Co., 275 N.Y. 287; Lake Steel Erection v. Egan, 61 A.D.2d 1125). Therefore, the fact that the contract specified no time limit for payment cannot provide a basis for dismissal of a cause of action for failure to pay within a reasonable time. Titone, J.P., Rabin, Margett and Weinstein, JJ., concur.