Opinion
March 9, 1998
Appeal from the Supreme Court, Nassau County (Franco, J.).
Ordered that the order is affirmed, with costs.
The defendants' motion for partial summary judgment dismissing the plaintiff's first and second causes of action to recover damages for fraud and breach of fiduciary duty was properly denied. The evidence proffered by the plaintiff in opposition to the motion was sufficient to raise a triable issue of fact as to whether there was conduct leading to separate tort liability arising from a breach of duty distinct from, or in addition to, any claim alleging breach of contract ( see, Meyers v. Waverly Fabrics, 65 N.Y.2d 75; see also, North Shore Bottling Co. v. Schmidt Sons, 22 N.Y.2d 171, 179).
The defendants' remaining contention was not raised in the Supreme Court and is, therefore, not properly before this Court on appeal ( see, Robinson v. Donald C. Swanson, Inc., 205 A.D.2d 678).
Rosenblatt, J. P., O'Brien, Ritter and Goldstein, JJ., concur.