Summary
finding a claim for a breach of an implied covenant of good faith and fair dealing to be "redundant" since it "is intrinsically tied to the damages allegedly resulting from a breach of the contract."
Summary of this case from Computech International v. Compaq Computer Corp.Opinion
February 21, 1995
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The parties' contract unambiguously provides that the amount of damages available for delay is limited to $1,000 per day (see, W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162). Moreover, if any conflict arises, the parties specifically agreed that the provisions of the Prime Contract shall prevail, and that contract contains a liquidated damage clause to address any delay damages, as allegedly occurred here.
The second counterclaim sounding in fraud fails as it merely is an improper attempt to recast the breach of contract claim in terms of fraud (see, Tesoro Petroleum Corp. v. Holborn Oil Co., 108 A.D.2d 607, appeal dismissed 65 N.Y.2d 637). Indeed, there is no assertion that plaintiff allegedly breached any obligation collateral to or separate and apart from the obligations it had agreed to perform pursuant to the contract (supra).
Finally, the fifth counterclaim is redundant since a breach of an implied covenant of good faith and fair dealing is intrinsically tied to the damages allegedly resulting from a breach of the contract (see, Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056).
Concur — Murphy, P.J., Rosenberger, Wallach, Rubin and Ross, JJ.