Summary
In Zachariou v Manios (50 AD3d 257 [1st Dept 2008]), the Appellate Division, First Department affirmed the dismissal, awarding costs to defendants in the action (NYSCEF 23) The 2006 Action was discontinued in 2010.
Summary of this case from Zachariou v. ManiosOpinion
No. 3216.
April 1, 2008.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 7, 2007, which, to the extent appealed from as limited by the briefs and by a stipulation of discontinuance, dismissed plaintiff's causes of action for fraud, negligent misrepresentation, and conspiracy, unanimously affirmed, with costs.
Hughes Hubbard Reed LLP, New York (Derek J.T. Adler of counsel), for appellant.
Watson, Farley Williams, New York (John G. Kissane of counsel), for respondent.
Before: Lippman, P.J., Tom, Williams and Acosta, JJ.
The causes of action for fraud and negligent misrepresentation either fell under the 1999 Greek Agreement or the London Agreement, which both contain mandatory Greek forum selection clauses ( see Micro Balanced Prods. Corp. v Hlavin Indus., 238 AD2d 284, 285), or were based upon conduct "innate to the performance of the contract" and thus encompassed in the breach of contract cause of action ( McMahan Co. v Bass, 250 AD2d 460, 462-463, lv dismissed in part and denied in part 92 NY2d 1013).
There is no independent cause of action for civil conspiracy ( Bronx-Lebanon Hosp. Ctr. v Wiznia, 284 AD2d 265, 266, lv dismissed 97 NY2d 653).
Based on plaintiff's claim that she has not completed the accounting and report required under the U.S. Agreement because of defendant's alleged defaults in providing books and records, pursuant to section 10 of the U.S. Agreement, any award of compensatory damages must be determined by the arbitrator.
[ See 2007 NY Slip Op 31072(U).]