Opinion
November 13, 1995
Appeal from the Supreme Court, Dutchess County (Beisner, J.).
Ordered that the appeal from the order entered April 1, 1994, is dismissed, as that order was superseded by the order entered September 23, 1994, made upon reargument; and it is further,
Ordered that the appeal from the order entered April 7, 1994, is dismissed as abandoned; and it is further,
Ordered that the order entered September 23, 1994, is reversed insofar as appealed from, on the law, the branch of the order dated April 1, 1994, which granted the motion by the defendants A.O. Smith Corporation and A.O. Smith Harvestore Products, Inc., to dismiss the fourth cause of action is vacated, that motion is denied, and the fourth cause of action is reinstated; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The court erred in dismissing the cause of action to recover damages for fraud because the defendants A.O. Smith Corporation and A.O. Smith Harvestore Products, Inc., failed to establish that the supporting allegations do not only concern representations which were collateral or extraneous to the parties' agreement ( see, Morgan v Smith Corp., 221 A.D.2d 422 [decided herewith]). Thompson, J.P., Joy, Goldstein and Florio, JJ., concur.