STEWART v. MAITLAND (2007)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 20, 2006, which, to the extent appealed from as limited by the briefs, dismissed the sixth and eighth causes of action, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered February 21, 2006, unanimously dismissed, without costs, in light of the motion court's recall of that order and its replacement with the later order.

The cause of action for fraud and negligent misrepresentation was duplicative of plaintiff's contract claim, inasmuch as it alleged no factual basis for recovery other than defendants' failure to keep promises;  no damages were sought thereunder that would not be recoverable under a contract measure of damages (see Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 732 N.Y.S.2d 402 [2001] ).   In view of the dismissal of the fraud cause of action, there was no predicate for plaintiff's request to impose a constructive trust, that remedy being “fraud-rectifying” rather than “intent-enforcing” (Bazerman v. Edwards, 295 A.D.2d 115, 742 N.Y.S.2d 822 [2002] ).