SCHULMAN v. [And a Third-Party Action]. (2008)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 24, 2007, which, to the extent appealed from, granted the motion to dismiss the complaint as against defendant Wallach and denied plaintiffs' cross motion to amend the complaint, unanimously affirmed, without costs.

 Plaintiffs failed to plead fraud with the requisite specificity (CPLR 3016[b] ), and their proposed amended complaint fails to cure this deficiency.   The causes of action for fraud and fraud in the inducement merely allege that defendants did not intend to properly perform the construction contemplated in the contract.   This is insufficient.  “While a party who is fraudulently induced to enter into a contract may join a cause of action for fraud with one for breach of the same contract, it may do so only if the misrepresentations alleged consist of more than mere promissory statements about what is to be done in the future,” and the alleged misrepresentations “must be misstatements of material fact or promises made with a present, but undisclosed intent not to perform them” (Eastman Kodak Co. v. Roopak Enters., 202 A.D.2d 220, 222, 608 N.Y.S.2d 445 [1994] ).   Plaintiffs have failed to allege what misrepresentations, if any, were made by the individual defendant, and have not asserted any allegations that would warrant imposing individual liability upon him.