Morgan v. A.O. Smith Corp.

Oct 25, 1999
Versions:265 A.D.2d 536
697 N.Y.S.2d 152
1999 N.Y. App. Div. LEXIS 10776

—In an action to recover damages for breach of warranty and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), dated July 20, 1998, as granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for fraud.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court correctly dismissed the plaintiffs’ cause of action to recover damages for fraud since the facts alleged in support of that cause of action were duplicative of the facts alleged in support of the time-barred causes of action to recover damages for breach of warranty (see, Jim Longo, Inc. v Rutigliano, 251 AD2d 547; Mastropieri v Solmar Constr. Co., 159 AD2d 698). A cause of action to recover damages for fraud will not lie when the only fraud alleged relates to a breach of contract (see, Jim Longo, Inc. v Rutigliano, supra; Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643; Weitz v Smith, 231 AD2d 518; Mastropieri v Solmar Constr. Co., supra). O’Brien, J. P., Santucci, Thompson and Sullivan, JJ., concur.