Opinion
October 3, 1988
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The first cause of action asserted in the complaint at bar alleged that Bixler and other defendants had committed a fraud against the plaintiffs. However, the plaintiffs failed to allege in the complaint or to prove in the evidentiary material submitted in support thereof that at the time Bixler made the alleged misrepresentations concerning the ownership of lot No. 27 or the prior issuance of a building permit for that lot, he had a then-present intent to defraud; furthermore, the record does not contain factual assertions from which such an intent can reasonably be inferred (see, Senerchia Realty Corp. v Yonkers Community Dev. Agency, 80 A.D.2d 889, 890; see also, Lanzi v Brooks, 54 A.D.2d 1057, 1058, affd 43 N.Y.2d 778, mot to amend remittitur granted 43 N.Y.2d 947, rearg denied 44 N.Y.2d 733; Levy v Country Lake Homes, 133 A.D.2d 70, 71; Glassman v Catli, 111 A.D.2d 744; Harris v Camilleri, 77 A.D.2d 861, 863; Ahern v General Acc. Fire Life Assur. Corp., 19 A.D.2d 883, 884). Consequently, Bixler's motion to dismiss the first cause of action as asserted against it was properly granted. Mollen, P.J., Mangano, Thompson and Brown, JJ., concur.