Bencivenga & Co. v. Phyfe

Full title: BENCIVENGA COMPANY, CPAs, P.C., Appellant, v. JAMES D. PHYFE et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1994

210 A.D.2d 22 (N.Y. App. Div. 1994)

619 N.Y.S.2d 33

Opinion

December 1, 1994

Appeal from the Supreme Court, New York County (Herman Cahn, J.).

Plaintiff's proposed causes of action based on fraud were palpably insufficient, and thus leave to amend was properly denied. A cause of action based upon breach of contract cannot be converted into one for fraud merely by alleging that defendants did not intend to fulfill the contract (Glenn Partition v Trustees of Columbia Univ., 169 A.D.2d 488). Plaintiff's claims of alleged fraudulent inducement are based on future intent, and are thus also deficient (see, Gordon v De Laurentiis Corp., 141 A.D.2d 435, 436).

Concur — Ellerin, J.P., Wallach, Ross and Williams, JJ.