182 A.D.2d 1067 | N.Y. App. Div. | 1992
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied defendant’s cross motion seeking various relief regarding discovery, dismissal of the complaint, or, in the alternative, an order striking the Note of Issue and Certificate of Readiness. Further, Supreme Court properly granted plaintiff’s motion for partial summary judgment on the issue of liability on the cause of action that seeks damages for breach of contract. Summary judgment was improperly granted, however, on the remaining causes of action because they are not legally cognizable claims. The record demonstrates that all the causes of action stem from defendant’s alleged failure to perform her contract with plaintiff. In its second cause of action, alleging fraud, plaintiff alleges that defendant made misrepresentations to it regarding the cost of certain airline tickets. We recognize that some acts that give rise to a cause of action for fraud may also form a basis for a breach of contract cause of action (see, e.g., Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956). A cause of action for fraud, however, is not stated where, as
We have considered defendant’s remaining contentions and find them to be lacking in merit. Therefore, the order is modified by denying plaintiffs motion for partial summary judgment on the issue of liability on the second, third, fourth, fifth and sixth causes of action and by dismissing those causes of action. (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.) Present — Denman, P. J., Boomer, Boehm, Fallon and Davis, JJ.