Canigliav.Chicago Tribune-New York News Syndicate Inc.

Appellate Division of the Supreme Court of New York, First DepartmentMay 26, 1994
204 A.D.2d 233 (N.Y. App. Div. 1994)
204 A.D.2d 233612 N.Y.S.2d 146

May 26, 1994

Appeal from the Supreme Court, New York County (Beverly Cohen, J.).

On a motion addressed to the sufficiency of a complaint pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference. However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration (see, Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220).

The IAS Court properly dismissed, without leave to replead, the plaintiffs' first cause of action, purporting to set forth a cause of action for breach of contract, as too indefinite, and therefore, unenforceable, for plaintiffs' failure to allege, in nonconclusory language, as required, the essential terms of the parties' purported personal services contract, including those specific provisions of the contract upon which liability is predicated (Chrysler Capital Corp. v. Hilltop Egg Farms, 129 A.D.2d 927, 928), whether the alleged agreement was, in fact, written or oral (Bomser v. Moyle, 89 A.D.2d 202, 205), and the rate of compensation (Cooper Sq. Realty v. A.R.S. Mgt., 181 A.D.2d 551).

Plaintiffs' second cause of action for purported fraud constitutes a mere restatement of their breach of contract claim (Kamyr, Inc. v. Combustion Eng'g, 198 A.D.2d 44) and failed to contain the essential elements of the alleged fraud, i.e., representation of a material fact, falsity, knowledge, intent to deceive, reliance and damages, with the requisite particularity pursuant to CPLR 3016 (b) (Bank Leumi Trust Co. v. D'Evori Intl., 163 A.D.2d 26, 31-32). It is well settled that a cause of action for fraud does not arise, where, as here, the only fraud alleged merely relates to a contracting party's alleged intent to breach a contractual obligation (Comtomark, Inc. v. Satellite Communications Network, 116 A.D.2d 499, 500).

Concur — Sullivan, J.P., Rosenberger, Ellerin and Kupferman, JJ.