Lake Street Construction, Inc. v. Lake Street Associates

Defendants in action No. 1, plaintiff in action No. 2, 356 and counterclaim defendants in action No. 2 appeal from so much of an order of the Supreme Court, Westchester County (Rosenblatt, J.), dated January 6, 1984, as denied their motion for summary judgment against plaintiff in action No. 1 and defendants and counterclaim plaintiffs in action No. 2. Order modified, on the law, by granting summary judgment in favor of appellants on so much of respondents’ causes of action as allege fraud and those causes of actions are dismissed. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Appellants and respondents are involved in a limited profit housing project. The issues brought before this court involve very detailed transactions between various corporate and noncorporate entities, resulting in several agreements between the parties and others not involved in the instant actions. There are factual questions, specifically regarding whether there was a joint venture agreement, and the length of its duration, which must be resolved before the legal questions can be addressed. Consequently, with respect to those causes of action which do not allege fraud, summary judgment was properly denied. However, summary judgment should have been granted in favor of appellants with respect to respondents’ causes of action seeking damages for fraud. Respondents failed to allege any facts to show that the appellants never intended to honor the purported oral agreement of December 1976. Mere conclusory allegations combined with a later repudiation of the agreement, cannot suffice to show that there was no intention to fulfill the agreement at the time it was made (Grossberg v Grossberg, 104 AD2d 439). Accordingly, the portions of respondents’ complaint and counterclaim alleging fraud are dismissed. Mollen, P. J., Mangano, O’Connor and Weinstein, JJ., concur.