Tra-Lin Corp. v. Empire Beef Co.

Memorandum: Plaintiff commenced this action asserting causes of action for, inter alia, breach of contract and fraud against defendant Empire Beef Co., Inc. (Empire) and a single cause of action for fraud against Steven H. Bevine and Bori Be-vine (defendants), after Empire rescinded payment for fuel deliveries made by plaintiff to Empire. Supreme Court erred in denying defendants’ motion seeking, inter alia, to dismiss the amended complaint against them pursuant to CPBR 3211 (a) (7), for failure to state a cause of action. Even affording the cause of action for fraud against defendants a liberal construction and accepting the facts alleged as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that plaintiff alleges therein only that defendants, as corporate officers, knew of or participated in Empire’s decision to induce plaintiff to enter into a contract that Empire did not intend to honor, and “such allegations do not state a cause of action [for] fraud” (Makuch v New York Cent. Mut. Fire Ins. Co., 12 AD3d 1110, 1111 [2004]). The alleged fraudulent representation was directly related to and contained within a specific provision of the contract, and “[i]t is well settled that a cause of action to recover damages for 1142 fraud may not be maintained when the only fraud charged relates to a breach of contract” (Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643, 644 [1997]). Present — Centra, J.P., Peradotto, Garni, Lindley and Valentino, JJ.