Guerrera v. Foundation Title & Escrow Corp.

Mar 10, 2003
Versions:303 A.D.2d 456
755 N.Y.S.2d 900
2003 N.Y. App. Div. LEXIS 2375

—In an action, inter alia, to recover damages for breach of contract, the defendant First American Title Insurance Company of New York appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated August 21, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the second, third, and fourth causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs second cause of action, sounding in negligence, is time-barred and therefore should have been dismissed (see CPLR 214 [5]; DiPilato v Martinelli, 274 AD2d 412 [2000]).

A cause of action to recover damages for fraud will not arise when the only fraud charged relates to a breach of contract (see Lavi v Lavi, 256 AD2d 602, 604 [1998]; Crowley Mar. Assoc. v Nyconn Assoc., 292 AD2d 334 [2002]). Therefore, the third cause of action should have been dismissed.

Moreover, after the appellant made out a prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether there was an agreement between the parties authorizing an award of an attorney’s fee (see Maliner-Colvin v 85-10 34th Ave. Apt. Corp., 284 AD2d 434 [2001]; Severino v Classic Collision, 280 AD2d 463 [2001]). Accordingly, the fourth cause of action should have been dismissed.

The appellant’s remaining contentions are without merit. Feuerstein, J.P., Krausman, Mastro and Rivera, JJ., concur.