Opinion
CA 03-00237
May 2, 2003.
Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered January 9, 2003, which, inter alia, denied plaintiffs' cross motion for leave to serve a third amended complaint.
HISCOCK BARCLAY, LLP, BUFFALO (THOMAS F. KNAB OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
WEBSTER SZANYI LLP, BUFFALO (EDGAR C. NE MOYER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
As limited by their brief, plaintiffs appeal from that part of an order denying their cross motion seeking leave to serve a third amended complaint. Supreme Court properly determined that the allegations of fraud contained in the proposed third amended complaint relate to defendants' alleged breach of the obligations under the contracts with plaintiffs and thus that a separate cause of action for fraud is not stated ( see Towne Ford v. Marowski, 251 A.D.2d 1075, 1076; cf. Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956; First Bank of Ams. v. Motor Car Funding, 257 A.D.2d 287, 291-292). Thus, we conclude that the court did not abuse its discretion in denying plaintiffs' cross motion ( see generally Fingerlakes Chiropractic v. Maggio, 269 A.D.2d 790, 791).