Commercial Division Blog

Posted: July 22, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Breach of Contract, Contracts, Fraud/Misrepresentation

Fraud Claim Dismissed as Duplicative of Breach of Contract Claim

In a Decision and Order dated May 5, 2022, in Coulter v. Sorenson, 2022 NY Slip. Op. 31480(U), Justice Barry R. Ostrager granted defendants’ motion to dismiss plaintiff’s fraud claim as duplicative of plaintiff’s surviving breach of contract claim. The Court explained:

The motion to dismiss the sixth cause of action for fraud is also granted as duplicative of the surviving claims in this case. Parties may not assert a fraud claim seeking damages that are duplicative of those recoverable on a cause of action for breach of contract. MBIA Ins. Cor. V. Credit Suisse Sec. (USA), LLC, 165 A.D.3d 108, 114, 84 N.Y.S.3d 157 (1st Dept. 2018). While a claim for fraud may not be duplicative if the plaintiff pleads the misrepresentation of a "then-present fact collateral to the contract," GoSmile, Inc. v. Levine, 81 A.D.3d 77, 81, 915 N.Y.S.2d 521 (1st Dept. 2010), plaintiff has failed to do so here. The only "then-present fact" relied on by plaintiff was that defendant did not intend to comply with the promises he allegedly made at the time the parties entered into the agreements, which is a mere "misrepresentation of a future intent to perform." Id. at 81.

The attorneys at Schlam Stone & Dolan frequently litigate claims concerning fraud.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning such disputes.