MORGAN v. SMITH CORPORATION

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

George B. MORGAN, etc., et al., appellants, v. A.O. SMITH CORPORATION, et al., respondents.

Decided: October 25, 1999

CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON and THOMAS R. SULLIVAN, JJ. James J. Ball, New York, N.Y., for appellants. Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y. (Keith Manning and William Christ of counsel), for respondents.

In an action to recover damages for breach of warranty and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), dated July 20, 1998, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for fraud.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 The Supreme Court correctly dismissed the plaintiffs' cause of action to recover damages for fraud since the facts alleged in support of that cause of action were duplicative of the facts alleged in support of the time-barred causes of action to recover damages for breach of warranty (see, Jim Longo, Inc. v. Rutigliano, 251 A.D.2d 547, 674 N.Y.S.2d 730;  Mastropieri v. Solmar Constr. Cor., 159 A.D.2d 698, 553 N.Y.S.2d 187).   A cause of action to recover damages for fraud will not lie when the only fraud alleged relates to a breach of contract (see, Jim Longo, Inc. v. Rutigliano, supra;  Alamo Contract Bldrs. v. CTF Hotel Co., 242 A.D.2d 643, 663 N.Y.S.2d 42;  Weitz v. Smith, 231 A.D.2d 518, 647 N.Y.S.2d 236;  Mastropieri v. Solmar Constr. Co., supra).

MEMORANDUM BY THE COURT.

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