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Gary Fromowitz, Respondent v. W Park Associates

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


August 5, 2011

GARY FROMOWITZ, RESPONDENT,
v.
W PARK ASSOCIATES, INC. DOING BUSINESS AS WEST PARK ASSOCIATES, INC. AND
THOMAS FLANAGAN ALSO KNOWN AS THOMAS M. FLANAGAN, APPELLANTS.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), entered February 22, 2010.

Fromowitz v W Park Assoc., Inc.

Decided on August 5, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order, insofar as appealed from, denied the branches of defendants' motion seeking to dismiss plaintiff's first and second causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In 1995, the parties entered into a contract pursuant to which defendants were to perform construction work on plaintiff's home, including the installation of 30-year architectural roof shingles. After the roof began to leak, plaintiff brought this action to recover damages for fraud and breach of contract. Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), on the ground that the action was time-barred, and pursuant to CPLR 3211 (a) (7), on the ground that plaintiff had failed to state a cause of action. In an order entered February 22, 2010, the District Court granted the branch of defendants' motion seeking to dismiss, on statute of limitations grounds, the third cause of action, alleging a breach of contract, but denied the branches of the motion seeking to dismiss the first and second causes of action, each alleging fraud. Defendants appeal from so much of the order as denied the branches of their motion seeking to dismiss plaintiff's first and second causes of action.

"[A] misrepresentation of material fact, which is collateral to the contract and serves as an inducement for the contract, is sufficient to sustain a cause of action alleging fraud" (WIT Holding Corp. v Klein, 282 AD2d 527, 528 [2001]). Plaintiff's first and second causes of action allege a representation of a material fact, which was false and known to be false by defendants when made, which representation was made for the purpose of inducing plaintiff to rely upon it to plaintiff's detriment. Consequently, plaintiff's first and second causes of action sufficiently state grounds for fraud independent of plaintiff's cause of action for breach of contract.

We note that defendants do not argue on appeal that if plaintiff's causes of action based on fraud were properly stated, they should nevertheless be dismissed on statute of limitations grounds (see CPLR 213 [8]).

Accordingly, as the District Court properly denied the branches of defendants' motion seeking to dismiss the first and second causes of action for failure to state a cause of action, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

20110805

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