Tannehill v. Paul Stuart, Inc.

640 N.Y.S.2d 505 | N.Y. App. Div. | 1996

Order, Supreme Court, Appellate Term, First Department, entered February 22, 1994, which reversed an order of Civil Court, New York County (Paula Oman-sky, J.), entered on or about June 30,1993, denying defendant’s motion to dismiss plaintiff’s second cause of action for fraud, and granted the motion to dismiss, affirmed, without costs.

While plaintiff’s allegation, that defendant’s false representation fraudulently induced her to leave her employment with another retailer, sets forth an injury separate from that alleged with respect to her insufficient breach of contract claim for wrongful termination by defendant (see, Stewart v Jackson & Nash, 976 F2d 86, 88), the wrongful act alleged in support of the fraud claim does not differ from the purely contract-related allegation that defendant did not intend to perform at the time it entered into the agreement, and therefore fails to state a cause of action (see, Nagle v Shearson Lehman Bros., 190 AD2d 568, 569; Grant v DCA Food Indus., 124 AD2d 909, 910, lv denied 69 NY2d 612; cf., Navaretta v Group Health, 191 AD2d 953, 955). Moreover, it cannot be said that plaintiff reasonably relied on defendant’s representation, because the offered employment was at will (see, Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553, 557-558; Bower v Atlis Sys., 182 AD2d 951, 953, lv denied 80 NY2d 758). Concur—Rosenberger, J. P., Wallach, Nardelli and Williams, JJ.

Kupferman, J., dissents and would reverse for the reasons stated by Omansky, J., and upon the dissenting opinion of Miller, J., at the Appellate Term.