Summary
finding fraud claim duplicative of contract claim where plaintiff's “purported fraud damages [were] actually contract damages”
Summary of this case from Green Star Energy Sols. v. Edison Props.Opinion
2014-11-25
TRIAD INTERNATIONAL CORP., Plaintiff–Appellant, v. CAMERON INDUSTRIES, INC., et al., Defendants–Respondents.
Lazarus & Lazarus, P.C., New York (Michael E. Murav of counsel), for appellant. Schlacter & Associates, New York (Jed R. Schlacter of counsel), for respondents.
Lazarus & Lazarus, P.C., New York (Michael E. Murav of counsel), for appellant. Schlacter & Associates, New York (Jed R. Schlacter of counsel), for respondents.
GONZALEZ, P.J., MAZZARELLI, MANZANET–DANIELS, GISCHE, CLARK, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about September 6, 2013, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint as against defendant Khayyam, unanimously affirmed, without costs.
Plaintiff's fraud claim against Khayyam is duplicative of its contract claim against defendant Cameron Industries, Inc., since plaintiff seeks the same compensatory damages for both claims ( see Introna v. Huntington Learning Ctrs., Inc., 78 A.D.3d 896, 898–899, 911 N.Y.S.2d 442 [2d Dept.2010]; Mañas v. VMS Assoc., LLC, 53 A.D.3d 451, 454, 863 N.Y.S.2d 4 [1st Dept.2008] ). On appeal, plaintiff seeks to amend its complaint. However, its purported fraud damages are actually contract damages. Plaintiff seeks to be placed in the same position that it would have been in had Cameron performed (i.e., made payment) under the contract ( see Mañas, 53 A.D.3d at 454, 863 N.Y.S.2d 4). Therefore, repleading would be futile ( see e.g. Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 568 N.Y.S.2d 581 [1st Dept.1991]; Teachers Ins. Annuity Assn. of Am. v. Cohen's Fashion Opt. of 485 Lexington Ave., Inc., 45 A.D.3d 317, 319, 847 N.Y.S.2d 2 [1st Dept.2007] ).