34-35th Corp.v.1-10 Industry Associates

Appellate Division of the Supreme Court of New York, Second DepartmentDec 22, 2003
2 A.D.3d 711 (N.Y. App. Div. 2003)
2 A.D.3d 711768 N.Y.S.2d 644


December 22, 2003.

In an action, inter alia, to recover damages for breach of a lease, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated July 16, 2002, as granted that branch of the defendant's motion which was to dismiss the third cause of action alleging fraud as a sanction for its spoliation of evidence.

Smith Buss Jacobs, LLP, Yonkers, N.Y. (David R. Gronback of counsel), for appellant.

Piper Rudnick, LLP, New York, N.Y. (Mark C. Zauderer, Jonathan D. Lupkin, and Carolyn A. Dizon, of counsel), for respondent.



ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff's spoliation of the tape recordings of its meeting with the defendant's representatives did not warrant dismissal of the plaintiff's third cause of action in its entirety. The third cause of action, as pleaded, alleges both oral and written misrepresentations, and the defendant is not left "prejudicially bereft" to defend itself against the alleged written misrepresentations by loss of the proof of the alleged oral misrepresentations ( see Chiu Ping Chung v. Caravan Coach Co., 285 A.D.2d 621). Dismissal of only that part of the third cause of action which is based upon alleged oral misrepresentations was warranted as a spoliation sanction ( see Foncette v. LA Express, 295 A.D.2d 471, 472).

The dismissal of the remainder of the third cause of action is justified, however, because of its legal insufficiency. Although this argument was not raised in the Supreme Court, this insufficiency involves a question of law that appears on the face of the record ( see Schuler v. Kings Plaza Shopping Ctr. Marina, 294 A.D.2d 556, 558; Weiner v. MKVII-Westchester, 292 A.D.2d 597, 598; Matter of Adam S., 285 A.D.2d 175, 177).

A fraud cause of action may not be maintained when the only fraud charged relates to the breach of contract ( see Page v. Muze, Inc., 270 A.D.2d 401; Germain v. Staten Is. Boat Sales, 248 A.D.2d 507; Alamo Contract Bldrs. v. CTF Hotel Co., 242 A.D.2d 643, 644). Here, the fraud claim arises out of the identical facts and circumstances, and even contains the same allegations, as the cause of action alleging breach of contract ( see Morgan v. Smith Corp., 265 A.D.2d 536; Purnavel v. Tel-A-Car of N.Y., 204 A.D.2d 297; Guerrero v. Valiando, 197 A.D.2d 667). Moreover, the plaintiff has not claimed that the fraud arises from representations that are collateral or extraneous to the parties' contract ( see Gupta Realty Corp. v. Gross, 251 A.D.2d 544, 545; Alamo Contract Bldrs. v. CTF Hotel Co., supra). Finally, there are no damages that would not be recoverable under the contract measure of damages, and therefore, the fraud cause of action is simply redundant ( see Tuck Indus. v. Reichhold Chems., 151 A.D.2d 565, 566). Accordingly, we affirm the dismissal of the third cause of action in its entirety, albeit, in part, on a different ground.