767 Third Avenue LLC v. Greble & Finger, LLP

Jun 10, 2004
Versions:8 A.D.3d 75
778 N.Y.S.2d 157
2004 N.Y. App. Div. LEXIS 7952

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 3, 2003, which granted defendants’ motion to dismiss the complaint and denied plaintiffs cross motion for a default judgment, unanimously affirmed, with costs.

The single motion rule (CPLR 3211 [e]) has no application where defendants promptly refiled their dismissal motion after initial denial on procedural grounds for failure to attach a copy of the amended complaint. There was no prejudice to plaintiff, and the matter was ripe for disposition (see generally Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86 [1993]). Neither the letter nor the spirit of the single motion rule was violated (Held v Kaufman, 91 NY2d 425 [1998]).

Plaintiffs failure to identify any portion of the lease allegedly breached was fatal to its cause of action for breach of contract. Similarly, plaintiff failed to plead a violation of the covenant of good faith and fair dealing, and failed to allege any facts regarding defendants’ bad faith or unfair dealing. In any event, the covenant of good faith and fair dealing cannot negate defendants’ express contractual right to terminate the lease at any time without liability (Berzin v W.P Carey & Co., 293 AD2d 320 [2002]).

Plaintiff also failed to plead with specificity the allegations underlying its causes of action for fraudulent misrepresentation and fraudulent inducement (CPLR 3016 [b]). The fraud claims allege nothing more than defendants’ entry into a contract they purportedly did not intend to honor (Goldstein v CIBC World Mkts. Corp., 6 AD3d 295 [2004]). It is well settled that a cause of action for fraud does not arise where the only fraud alleged merely relates to a party’s alleged intent to breach a contractual obligation (Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233 [1994]). The fraud causes of action were properly dismissed, as was the cause of action for attorneys’ fees. Concur—Buckley, P.J., Lerner, Friedman, Marlow and Sweeny, JJ.