Opinion
868 2004.
Decided June 24, 2004.
Upon the foregoing papers it is ordered that the motion is granted.
On October 2, 2003, plaintiff Universal Express (Universal) entered into an agreement with defendant Dan McKinnon (McKinnon), president and sole shareholder of defendant North American Airlines (NAA), for an option to purchase all of McKinnon's stock in NAA. In the instant action, plaintiff seeks to recover on claims of breach of the aforesaid agreement, fraudulent concealment and tortious interference.
That branch of the motion seeking to dismiss plaintiff's claims of fraudulent concealment are granted insofar as it is long established that such a claim cannot stand when it is essentially duplicative of the plaintiff's claim for breach of the underlying contract or agreement. ( Saleemi v. Pencom Sys., 99 Civ 667, 2000 WL 640647 [SNDY 2000]; Melnitzky v. Rose, 299 F Supp 2d 219.) Here, plaintiff asserts redundant claims of both fraudulent concealment with regard to due diligence as well as of defendant McKinnon's alleged failure to abide by the due diligence obligations under the agreement.
Similarly, the claims asserted against defendant NAA for alleged tortious interference with contractual relations and prospective economic advantage are insufficient as a matter of law insofar as there is a clear unity of interest between NAA and its president and sole shareholder, defendant McKinnon. ( Koret, Inc. v. Christian Dior, S.A., 161 AD2d 156.) In its opposition to the motion, plaintiff raises no factual issues to support this cause of action other than to aver that McKinnon was acting independently insofar as he reportedly "wanted out of the airline business." However, plaintiff acknowledges that McKinnon was in "complete control" of NAA, thereby undermining any argument that NAA was a legitimate third party for purposes of establishing a claim of tortious interference. ( Koret, Inc. v. Christian Dior, S.A., supra; Multi-Juice, S.A. v. Snapple Beverage Corp., 02 Civ 4635, 2003 WL 1961636 [SDNY 2003].)
Finally, plaintiff cannot salvage its fraudulent concealment claims against NAA under the "special facts" doctrine, where plaintiff does not identify the specific information that was allegedly concealed, and where it does not allege that defendants had a duty to disclose other than those duties set forth in the due diligence provisions. ( Cf., P.T. Bank Central Asia v. ABN AMRO Bank, N.V., 301 AD2d 373.) Rather, the fraudulent concealment claims mirror those causes of action alleging failure to comply with due diligence. ( Cf., Cirillo v. Slomins, Inc., 196 Misc 2d 922.)
Accordingly, the motion is granted and defendants may dismiss the first, fifth and sixth causes of action against them.