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Linea Nuova, S.A. v. Slowchowsky

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 12, 2009

LINEA NUOVA, S.A., PLAINTIFF-APPELLANT,
v.
HOWARD SLOWCHOWSKY, ET AL., DEFENDANTS-RESPONDENTS,
ABN AMRO BANK N., DEFENDANT.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 3, 2008, which, to the extent appealed from as limited by the briefs, granted defendant gold merchants' motion to dismiss the complaint as against Slowchowsky and the fraud claim as against GF Int'l Holding, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Catterson, Richter, Abdus-Salaam, JJ.

110087/07

The fraud claim was duplicative of the breach-of-contract claim, since the alleged misrepresentation of an existing fact was made in the context of merely assuring plaintiff that GF would comply with its contractual obligation and no additional duty was allegedly breached (cf. First Bank of the Ams. v Motor Car Funding, 257 AD2d 287, 291 [1999]). Moreover, plaintiff sought no damages that were not also recoverable under its breach of contract theory (see MaÑas v VMS Assoc., LLC, 53 AD3d 451, 454 [2008]).

We decline to address defendants-respondents' contentions for affirmative relief in light of their failure to appeal from the order.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090512

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