MORGAN KNITTING MILLS INC v. REEVES BROTHERS INC (1997)

Order, Supreme Court, New York County (Lewis Friedman, J.), entered June 20, 1996, which, insofar as appealed from as limited by plaintiffs' brief, granted defendants' motion to dismiss the cause of action for fraud for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiffs' cause of action for fraud, which alleges that defendants knew at the time of contract execution that their warranty therein against undisclosed liabilities burdening the property was false, was properly dismissed as duplicative of plaintiffs' cause of action for breach of contract.   The fraud alleged is based on the same facts as underlie the contract claim and is not collateral to the contract and no damages are alleged that would not be recoverable under a contract measure of damages (cf., Deerfield Communications Corp. v. Chesebrough-Ponds, 68 N.Y.2d 954, 510 N.Y.S.2d 88, 502 N.E.2d 1003;  Big Apple Car v. City of New York, 234 A.D.2d 136, 138, 650 N.Y.S.2d 730, 732, distinguishing Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 122, 629 N.Y.S.2d 1009, 653 N.E.2d 1179;  see also, Papa's-June Music v. McLean, 921 F.Supp. 1154, 1161-1162).

MEMORANDUM DECISION.