RAYTHEON COMPANY v. AES RED OAK LLC (2007)

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 9, 2006, which, to the extent appealed from, granted plaintiff partial summary judgment dismissing the fourth and fifth counterclaims in the amended answer, unanimously affirmed, with costs.

 In this action for breach of a construction contract in which defendant counterclaims for breach of a settlement agreement and its fraudulent inducement, the fraud counterclaims were properly dismissed on the ground that the required elements of a false statement and justifiable reliance (see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ) were both clearly contradicted by documentary evidence.   The very mechanical problem whose resolution defendant claims was misrepresented was specifically exempted from the releases and was included on a punch list.   Plaintiff's July 24, 2002 letter containing the alleged written misrepresentation stated there would be further testing, indicating that the asserted clearance by the supplier was only tentative.   Moreover, the allegation of an oral misrepresentation did not particularize when or by whom it had been made (CPLR 3016[b] ).  In addition, we agree that the fraud claims were not collateral or extraneous to the alleged breach of contract (see Coppola v. Applied Elec. Co., 288 A.D.2d 41, 732 N.Y.S.2d 402 [2001] ).

We have considered defendant's other contentions, including that summary judgment was premature, and find them unavailing.