Opinion
Decided November 19, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Franklin W. Morton, Jr., J.
Howard R. Birnbach for appellants.
Arthur N. Brook and Carole P. Sadler for respondent.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), appeal, insofar as taken from so much of the order of the Appellate Division as dismissed part of plaintiffs' first cause of action, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. Order, insofar as it dismissed and severed the second cause of action, affirmed, with costs. A complaint alleging fraud based on a statement of future intention must allege facts sufficient to show that the promisor, at the time the representation was made, never intended to honor the promise (Lanzi v Brooks, 43 N.Y.2d 947).
Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE.