Opinion
August 26, 1996
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered July 18, 1995, as denied its cross motion to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of the defendant's cross motion which was to dismiss the cause of action sounding in fraud, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A cause of action to recover damages for fraud cannot stand where the fraud alleged relates to a breach of contract. Therefore, the plaintiff's cause of action sounding in fraud must be dismissed (see, Brenner v DeBruin, 186 A.D.2d 701; McKernin v Fanny Farmer Candy Shops, 176 A.D.2d 233; Tuck Indus. v Reichold Chems., 151 A.D.2d 565). With respect to the remaining causes of action, the defendant has not made a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v City of New York, 49 N.Y.2d 557). O'Brien, J.P., Thompson, Altman and Krausman, JJ., concur.