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Ordered that the appeal from the order entered April 1, 1994, is dismissed, as that order was superseded by the order entered September 23, 1994, made upon reargument; and it is further,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 order entered September 23, 1994, is reversed insofar as appealed from, so much of the order entered April 1, 1994, as granted the motion by the defendant Mohawk Tech, Inc., to dismiss the fourth cause of action is vacated, the 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 Supreme Court erred in dismissing the fraud cause of action. When a cause of action to recover damages for fraud is premised upon an alleged breach of contract, the supporting allegations must only concern representations which are collateral or extraneous to the terms of the parties' agreement, or else a plaintiff is limited to a cause of action for breach of contract (see, Mastropieri v Solmar Constr. Co., 159 A.D.2d 698; Sforza v Health Ins. Plan, 210 A.D.2d 214; Noufrios v Murat, 193 A.D.2d 791; McKernin v Fanny Farmer Candy Shops, 176 A.D.2d 233). Here, the complaint alleges that the allegedly fraudulent representations were not contained in the contract (cf., Sforza v Health Ins. Plan, supra; Green Bus Lines v General Motors Corp., 169 A.D.2d 758), and because the contract is not in the record (cf., Jay Realty v Gross, 204 A.D.2d 274; Scheinberg v Samuels, 171 A.D.2d 857; Tuck Indus. v Reichhold Chems., 151 A.D.2d 565), we cannot determine whether the supporting allegations concern representations which were collateral or extraneous to the parties' agreement. Accordingly, the fraud cause of action should not be dismissed. Thompson, J.P., Joy, Goldstein and Florio, JJ., concur.