Summary
holding that claim that warranty as to liabilities on property was false does not state a cause of action for fraud
Summary of this case from Hughes v. Lillian Goldman Family, LLCOpinion
October 30, 1997
Appeal from Supreme Court, New York County (Lewis Friedman, J.).
Plaintiffs' cause of action for fraud, which alleges that defendants knew at the time of contract execution that their warranty therein against undisclosed liabilities burdening the property was false, was properly dismissed as duplicative of plaintiffs' cause of action for breach of contract. The fraud alleged is based on the same facts as underlie the contract claim and is not collateral to the contract and no damages are alleged that would not be recoverable under a contract measure of damages ( cf., Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954; Big Apple Car v. City of New York, 234 A.D.2d 136, 138, distinguishing Graubard Mollen Dannett Horowitz v. Moskovitz, 86 N.Y.2d 112, 122; see also, Papa's-June Music v. McLean, 921 F. Supp. 1154, 1161-1162).
Concur — Sullivan, J.P., Milonas, Wallach, Williams and Colabella, JJ.