BOONE ASSOCIATES v. OASTER (1999)

Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J.), entered July 25, 1997, granting defendant's motion to dismiss, and dismissing, plaintiff's claims against the estate of Boris Leavitt as barred by the non-claim statute of the State of Florida, unanimously affirmed, without costs.

 Sections 733.212(1)(a) and (4)(a), and 733.702(1) and (3) of Florida's Probate Code (Fla.Stat.Annot., ch. 733), require that claims against a Florida estate be filed within 90 days of the publication, in a local newspaper, of a notice of administration.   The IAS court correctly concluded that these Florida statutes are applicable to the claim asserted herein (see, Matter of Redding, 177 Misc. 987, 32 N.Y.S.2d 626;  Bachorik v. Allied Control Co., 56 Misc.2d 982, 290 N.Y.S.2d 70, affd. 31 A.D.2d 891, 299 N.Y.S.2d 100).  Marine Midland Bank v. United Missouri Bank, 223 A.D.2d 119, 643 N.Y.S.2d 528, relied upon by plaintiff, does not require a contrary result.   Crucial to the determination in that case were the facts that the promissory notes sued upon expressly provided that New York law would govern any action to enforce them and that the decedent therein had consented to personal jurisdiction in New York. In this case, there is no showing of any such provision in either the will or other document relied upon (see, Matter of Fabbri, 2 N.Y.2d 236, 239, 159 N.Y.S.2d 184, 140 N.E.2d 269).   Accordingly, plaintiff's claims for breach of an oral agreement and fraud in the inducement were properly dismissed as untimely under the Florida statute.   The fraud claim, we note, was, in any case, independently dismissible as duplicative of the breach of contract claim, since the mere additional allegation that the decedent did not intend to keep his promises when he made them was insufficient to convert the underlying claim for breach of promise into one for fraud (see, New York University v. Continental Insur. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763;  DePinto v. Ashley Scott, Inc., 222 A.D.2d 288, 635 N.Y.S.2d 215).

MEMORANDUM DECISION.