X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Appeals List released on: May 13, 2021

By Renwick, J.P., Manzanet-Daniels, Kennedy, Shulman, JJ. 651613/18. 320 WEST 115 REALTY LLC, plf-app, v. ALL BUILDING CONSTRUCTION CORP., ET AL., def-res — The Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel), for appellant — Hannum Feretic Prendergast & Merlino, LLC, New York (Jessica M. Erickson of counsel), for respondents — Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about October 18, 2019, which granted defendants’ motion to dismiss plaintiff’s claims for fraudulent inducement, negligence, and breach of the implied covenant of good faith and fair dealing, unanimously affirmed, without costs. In support of the fraudulent inducement claim, plaintiff’s main allegations are that (1) defendants submitted an artificially low price, which they never intended to honor, in an effort to induce plaintiff to sign the contract, and (2) defendants did not intend to perform under the contract from the very start. However, a cause of action for breach of contract “cannot be converted into one for fraud by merely alleging that defendant did not intend to fulfill the contract” (Non-Linear Trading Co. v. Braddis Assoc., 243 AD2d 107, 118 [1st Dept 1998]). Instead, an actionable claim for fraudulent inducement must allege the “representation of present fact, not of future intent” (Deerfield Communication Corp. v. Chesebrough-Ponds, Inc., 68 NY2d 954, 956 [1986] [internal quotation marks omitted]). Plaintiff has made no such allegations here. The claim for negligence was also properly dismissed. It is well settled that, absent allegations of a breach of duty independent of the contract, causes of action “based on negligent or grossly negligent performance of a contract are not cognizable” (Pacnet Network Ltd. v. KDDI Corp., 78 AD3d 478, 479 [1st Dept 2010] [internal quotation marks omitted]). The allegations of negligence in the amended complaint relate solely to defendants’ alleged faulty performance of the construction work, which does not fall outside of the obligations agreed to under the contract. Plaintiff’s attempt to rely on NY Lien Law article 3-A in an effort to establish an extra-contractual duty owed to plaintiff also fails. The allegations of negligence in the amended complaint are not based on a breach of defendants’ purported duty to pay subcontractors, but on defendants’ alleged failure to properly perform the work. The negligence allegations are duplicative of those asserted in support of plaintiff’s claim for breach of contract. The court properly dismissed plaintiff’s claim for breach of the implied covenant of good faith and fair dealing as duplicative of the breach of contract claim. In support of this claim plaintiff relies on the same facts that form the basis for the breach of contract claim and seek the exact same damages (see Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010], lv denied 15 NY3d 704 [2010]). We have considered plaintiff’s remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2021

October 13, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


Register

African Legal Awards 2021

September 03, 2021
TBD

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


Register

(NEW) MID-SENIOR LEVEL LITIGATION ASSOCIATE WANTED FOR EXPANDING FULL-SERVICE BOUTIQUE FIRM (Atlanta)

Atlanta, Georgia, United States

Our client, a boutique, bicoastal law firm established by former BigLaw partners, is seeking to hire a mid-senior level litigator with 4+ ye...


Apply Now ›

Intellectual Property Transactional Associate

New York, New York, United States

Duane Morris seeks an IP licensing and technology transactions associate attorney with 2-6 years of experience. Candidate should have experi...


Apply Now ›

The Judge George Killam, Jr. Chair of Criminal Law

Lubbock, Texas, United States

Texas Tech University School of Law, Lubbock, Texas     Texas Tech University School of Law invites applications from exception...


Apply Now ›

FLB LAW

08/02/2021
Connecticut Law Tribune


View Announcement ›

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN

07/27/2021
TLI Web

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.


View Announcement ›

HARWOOD LLOYD, LLC

07/26/2021
NJLJ Web

HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.


View Announcement ›