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Action for Fraud Can Not Be Based Upon Same Allegations as Action for Breach of Contract​

The Second Department explained that an action for fraud can not be based on breach of contract allegations:

“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” …. However, “a cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim” …. Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie …. Further, “[g]eneral allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support [a] claim” of fraudulent inducement… .  Fromowitz v W Park Assoc, Inc, 2013 NY Slip Op 03633, 5-22-13

 

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Elements of Breach of Fiduciary Duty
ALTHOUGH THE REAL ESTATE PURCHASE AGREEMENT ALLOWED THE SELLER TO CANCEL THE CONTRACT IF SELLER COULD NOT CONVEY TITLE, THAT PROVISION REQUIRES THE SELLER TO ACT IN GOOD FAITH; THE COMPLAINT ALLEGED THE SELLER FALSELY CLAIMED TO BE THE SOLE OWNER OF THE PROPERTY WHEN IN FACT SHE OWNED 50%; THE SELLER’S MOTION TO DISMISS THE COMPLAINT SEEKING SPECIFIC PERFORMANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT).
MOTION TO VACATE DEFAULT JUDGMENT OF FORECLOSURE WAS SUPPORTED BY A SWORN DENIAL OF SERVICE AND SPECIFIC FACTS WHICH REBUTTED THE PRESUMPTION OF PROPER SERVICE, MATTER SENT BACK FOR A HEARING (SECOND DEPT).
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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING WITH SUFFICIENT PROOF THAT THE NOTE WAS LOST (PURSUANT TO THE UCC) AND DID NOT PRESENT EVIDENCE SUFFICIENT TO WARRANT CORRECTION OF THE LEGAL DESCRIPTION OF THE PREMISES IN THE MORTGAGE BASED UPON MUTUAL MISTAKE (SECOND DEPT).
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE.
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