DRANOVSKY v. BUKH (2026)

DECISION & ORDER

In an action to recover damages for breach of contract and fraud, the defendants appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 26, 2025. The order, insofar as appealed from, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In 2014, the plaintiff commenced this action to recover damages for breach of contract and fraud. The complaint alleged, inter alia, that the defendants failed to file a UCC–1 financing statement against a certain cooperative apartment to perfect the plaintiff's security interest in connection with a loan he had given for the purchase of the apartment. The defendants moved, among other things, for summary judgment dismissing the complaint. In an order dated March 26, 2025, the Supreme Court, inter alia, denied that branch of the defendants' motion. The defendants appeal.

The Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging breach of contract. The elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach, and resulting damages (see Palisades Cleaning Servs., Inc. v Bagatelle Little W. 12th, LLC, 245 AD3d 953, 953; Riccio v. Genworth Fin., 184 AD3d 590, 591).

Here, the defendants failed to meet their burden of demonstrating their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging breach of contract. A moving defendant cannot satisfy its burden on a motion for summary judgment “merely by pointing out gaps in the plaintiff's case” (Bank of Am., N.A. v. Ball, 241 AD3d 481, 482 [internal quotation marks omitted]). Contrary to the defendants' contention, they failed to affirmatively demonstrate that no contract existed between them and the plaintiff to file the UCC–1 financing statement or that the plaintiff did not sustain damages resulting from the alleged breach (see Chin v. Pacific 10, LLC, 245 AD3d 882, 884; Feggins v. Marks, 229 AD3d 691, 692). Accordingly, that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging breach of contract was properly denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud. “A cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim” (Michael Davis Constr., Inc. v. 129 Parsonage Lane, LLC, 194 AD3d 805, 807 [internal quotation marks omitted]). Here, the allegations that form the basis of the cause of action alleging fraud are the same as those underlying the cause of action alleging breach of contract, namely, that the defendants misrepresented that they were knowledgeable and capable with regard to the filing of the UCC–1 financing statement and that they would do so in a timely fashion, and amounted to nothing more than a failure to perform under the alleged contract (see id.; Oceanview Assoc., LLC v HLS Bldrs. Corp., 184 AD3d 843; see also Weatherguard Contrs. Corp. v Bernard, 155 AD3d 921, 922).

The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

CONNOLLY, J.P., DOWLING, WAN and QUIRK, JJ., concur.