645 N.Y.S.2d 187 | N.Y. App. Div. | 1996
Lead Opinion
—Order affirmed without costs. Memorandum: Where, as here, affidavits are
Plaintiffs also allege that defendant Pav made fraudulent misrepresentations to induce the Building Department of the Town of Smithtown to issue a certificate of occupancy. “[A] separate cause of action seeking damages for intentional fraud cannot stand when the only fraud alleged relates to breach of a contract” (Schlang v Bear’s Estates Dev., 194 AD2d 914, 915; see also, Tierney v Capricorn Investors, 189 AD2d 629, 631-632, lv denied 81 NY2d 710; Garwood v Sheen & Shine, 175 AD2d 569, 570, lv denied 78 NY2d 864). Likewise, a cause of action for negligent misrepresentation must be based upon circumstances extraneous to performance of the contract (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389; RKB Enters, v Ernst & Young, 182 AD2d 971, 972). Plaintiff Pamela J. Rocco and defendant Meadow Acres signed the purchase contract on April 26, 1993. The affidavit containing the alleged misrepresentation was sworn to on June 23, 1993. Under the circumstances, the alleged misrepresentation was not made to induce plaintiff Pamela Rocco to enter into the purchase contract; it was made as part of the contractual duty to obtain a certificate of occupancy.
All concur except Fallon and Boehm, JJ., who dissent in part and vote to modify in the following Memorandum.
Dissenting Opinion
We respectfully dissent. In our view, Supreme Court erred in dismissing the 13th and 14th causes of action alleging negligent infliction of emotional distress and intentional infliction of emotional distress with respect to defendants George Pav and Meadow Acres Realty Corporation. Although recovery for emotional distress may not be predicated upon the observation of damage to one’s personal property, plaintiffs have stated a ground for recovery based upon their fear of physical injury as a result of defendants’ tortious conduct, particularly in light of plaintiff Ronald S. Rocco’s heart condition (see, Atherton v 21 E. 92nd St. Corp., 149 AD2d 354, 356).
Furthermore, because plaintiffs allege that they relied upon negligent or fraudulent misrepresentations in the certificate of occupancy that induced them to close on the property, we conclude that they have stated a cause of action for fraud in the inducement. "[A] party who is fraudulently induced to enter into a contract may join a cause of action for fraud with one for breach of the same contract” (Shlang v Bear’s Estates Dev., 194 AD2d 914, 915). The court also erred therefore in dismissing the seventh and ninth causes of action, alleging fraud and misrepresentation. Thus, we would modify the order by vacating that part dismissing the seventh, ninth, 13th and 14th causes of action. (Appeal from Order of Supreme Court, Suffolk County, Newmark, J.—Summary Judgment.) Present— Pine, J. P., Fallon, Callahan, Balio and Boehm, JJ.