Best Court Reporting Service, Inc. v. MGM Court Reporting Service, Inc.

—In an action, inter alia, to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated March 25, 1997, which denied their motion for partial summary judgment dismissing the first and second causes of action asserted in the complaint. Ordered that the order is affirmed, with costs. The defendants’ motion for partial summary judgment dismissing the plaintiffs first and second causes of action to recover damages for fraud and breach of fiduciary duty was properly denied. The evidence proffered by the plaintiff in opposition to the motion was sufficient to raise a triable issue of fact as to whether there was conduct leading to separate tort liability arising from a breach of duty distinct from, or in addition to, any claim alleging breach of contract (see, Meyers v Waverly Fabrics, 65 NY2d 75; see also, North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179). The defendants’ remaining contention was not raised in the Supreme Court and is, therefore, not properly before this Court on appeal (see, Robinson v Donald C. Swanson, Inc., 205 AD2d 678). Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.