ESSENTIAL HOME REMODELING INC v. ROSSIN (2025)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered December 7, 2023, which denied plaintiff's motion to dismiss defendant's counterclaim for fraud, deceit, and misrepresentation (the fifth counterclaim), unanimously reversed, on the law, without costs, the motion granted, and the counterclaim dismissed.

Defendant's counterclaim for fraud, deceit, and misrepresentation was not pleaded with the particularity required under CPLR 3016(b), as it makes only general and conclusory allegations that plaintiff entered into a contract while lacking the intent to perform it (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995];  Cronos Group Ltd. v. XComIP, LLC, 156 A.D.3d 54, 61, 64 N.Y.S.3d 180 [1st Dept. 2017]).  Defendant alleges that plaintiff “falsely represented” that it would “competently” perform its services “within 12–15 working weeks.”  Defendant pleads no specific facts from which it may be reasonably inferred that plaintiff did not intend to abide by the specified timeline “at the time the promissory representation was made” (Cronos Group Ltd., 156 A.D.3d at 71, 64 N.Y.S.3d 180;  see Barlow v. Skroupa, 221 A.D.3d 482, 483, 199 N.Y.S.3d 480 [1st Dept. 2023]).

The fraud counterclaim is also deficient because the same allegations underlie both the breach of contract and fraud causes of action (see Matter of Soames v. 2LS Consulting Eng'g, D.P.C., 187 A.D.3d 490, 491, 133 N.Y.S.3d 559 [1st Dept. 2020]).  The only fraud alleged is that plaintiff falsely represented that it would complete the renovations on the timeline set forth in the contract, and a breach of contract claim cannot be converted into one for fraud merely by alleging that defendant did not intend to fulfill the contract (see Non–Linear Trading Co., Inc. v. Braddis Assoc., Inc., 243 A.D.2d 107, 118, 675 N.Y.S.2d 5 [1st Dept. 1998];  see also Cronos Group Ltd., 156 A.D.3d at 62, 64 N.Y.S.3d 180).  In addition, the fraud counterclaim seeks the same damages as the breach of contract claim, apart from an unelaborated request for punitive damages in connection with the fraud claim (see Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 117 A.D.3d 421, 422–423, 985 N.Y.S.2d 33 [1st Dept. 2014];  see also MBIA Ins. Corp. v. Credit Suisse Sec. [USA] LLC, 165 A.D.3d 108, 114, 84 N.Y.S.3d 157 [1st Dept. 2018]).