LEVINE v. AMERICAN INTERNATIONAL GROUP (2005)

Supreme Court, Appellate Division, First Department, New York.

Scott A. LEVINE, Plaintiff-Appellant, v. AMERICAN INTERNATIONAL GROUP, et al., Defendants-Respondents.

Decided: March 22, 2005

TOM, J.P., SAXE, SULLIVAN, ELLERIN, NARDELLI, JJ.

Hoguet Newman & Regal, LLP, New York (Laura B. Hoguet of counsel), for appellant. Sullivan & Cromwell LLP, New York (Theodore O. Rogers, Jr. of counsel), for respondents.

Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered January 26, 2004, dismissing the complaint as against all defendants, unanimously affirmed, without costs.

The oral agreement by which defendants allegedly considered plaintiff's rights as vested under their deferred compensation plan in the event of his early termination was not capable of performance within one year, and thus violated the statute of frauds (see Sheehy v. Clifford Chance Rogers & Wells, 3 N.Y.3d 554, 789 N.Y.S.2d 456, 822 N.E.2d 763 [2004] ).

A cause of action for fraud arising out of a contractual relationship may be maintained only where the plaintiff alleges a breach of duty separate from, or in addition to, a breach of the contract (see Non-Linear Trading Co. v. Braddis Assoc., 243 A.D.2d 107, 118, 675 N.Y.S.2d 5 [1998] ). In the absence of such pleading, the causes of action alleging fraud and fraudulent inducement were properly dismissed.

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