Nuova v. Slowchowsky

May 12, 2009
Versions:

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 3, 2008, which, to the extent appealed from as limited by the briefs, granted defendant gold merchants’ motion to dismiss the complaint as against Slowchowsky and the fraud claim as against GF Int‘l Holding, unanimously affirmed, without costs.

The fraud claim was duplicative of the breach-of-contract claim, since the alleged misrepresentation of an existing fact was made in the context of merely assuring plaintiff that GF would comply with its contractual obligation and no additional duty was allegedly breached (cf. First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 291 [1999]). Moreover, plaintiff sought no damages that were not also recoverable under its breach of contract theory (see Mañas v VMS Assoc., LLC, 53 AD3d 451, 454 [2008]).

We decline to address defendants-respondents’ contentions for affirmative relief in light of their failure to appeal from the order. Concur—Gonzalez, P.J., Tom, Catterson, Richter and Abdus-Salaam, JJ.