Opinion
November 30, 1987
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered, that the appeal and the cross appeal from the order dated November 6, 1986, are dismissed, as that order was superseded by the order dated January 20, 1987; and it is further,
Ordered, that the order dated January 20, 1987, is reversed insofar as appealed from, on the law, the provision of the order dated November 6, 1986, which denied that branch of the defendant's motion which was to dismiss the second cause of action is vacated, and, upon reargument, that branch of the defendant's motion which was to dismiss the plaintiff's second cause of action is granted, and the complaint is dismissed in its entirety; and it is further,
Ordered that the order dated January 20, 1987, is affirmed insofar as reviewed upon the plaintiff's cross appeal; and it is further,
Ordered, that the defendant is awarded one bill of costs.
The plaintiff's first cause of action claiming fraud was properly dismissed because that cause of action did not allege fraud but, rather, that the defendant induced the plaintiff to enter into a contract which was later breached and that that breach was induced by the defendant (see, Tesoro Petroleum Corp. v. Holborn Oil Co., 108 A.D.2d 607). The plaintiff's second cause of action should be dismissed because plaintiff failed to plead that the defendant acted outside the scope of his employment or that he personally profited as a result of his actions (Citicorp Retail Servs. v. Wellington Mercantile Servs., 90 A.D.2d 532). The plaintiff's third cause of action to recover damages for prima facie tort was properly dismissed because it fails to plead a harm distinct from interference with contractual relations (see, Curiano v. Suozzi, 63 N.Y.2d 113, 118-119).
We have not considered those portions of the plaintiff's appendix that contain matter which was not before the Supreme Court, Nassau County. Mollen, P.J., Rubin, Kooper and Sullivan, JJ., concur.