ARTHUR GERBER, DOING BUSINESS AS NOOTEN SCALE SERVICE, PLAINTIFF-APPELLANT,
EMPIRE SCALE, DOING BUSINESS AS PRECISION SCALE & BALANCE, DEFENDANT-RESPONDENT.
T. CALLERI, P.C., ROCHESTER (ANGELO T. CALLERI OF COUNSEL),
SECREST & EMERY LLP, ROCHESTER (CANDACE M. CURRAN
ESPINOSA OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND
from an order and judgment (one paper) of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered April 2,
2014. The order and judgment denied plaintiff's motion to
compel discovery and granted the cross motion of defendant
for summary judgment dismissing the complaint and for
hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
Plaintiff appeals from an order and judgment that denied his
motion to compel discovery and granted the cross motion of
defendant for summary judgment dismissing the complaint and
for attorneys' fees. We affirm.
to plaintiff's contention, Supreme Court properly denied
his motion to compel discovery because plaintiff offered mere
speculation that facts essential to opposing defendant's
cross motion for summary judgment were in defendant's
"exclusive knowledge and possession and could be
obtained by discovery" (Resetarits Constr. Corp. v
Elizabeth Pierce Olmsted, M.D. Ctr. for the Visually
Impaired [appeal No. 2], 118 A.D.3d at 1456 [internal
quotation marks omitted]; see Eagen v Harlequin
Books, 229 A.D.2d 935, 936).
to plaintiff's further contention, defendant met its
initial burden of establishing its entitlement to summary
judgment dismissing plaintiff's first cause of action
alleging a breach of the parties' nondisclosure
agreement. Defendant tendered evidentiary proof in admissible
form that it did not breach the agreement (see generally
Zuckerman v City of New York, 49 N.Y.2d 557, 562), a
necessary element of a breach of contract cause of action
(see Resetarits Constr. Corp., 118 A.D.3d at 1455).
Although the affidavits submitted by defendant contained some
hearsay statements (see generally People v Johnson,
79 A.D.3d 1264, 1266-1267, lv denied 16 N.Y.3d 832),
defendant established through nonhearsay evidence that it did
not use plaintiff's confidential information to solicit
plaintiff's customers in violation of the nondisclosure
agreement. In opposition to defendant's motion, plaintiff
failed to establish the existence of a material triable issue
of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d
further conclude that defendant was entitled to summary
judgment dismissing plaintiff's second cause of action
alleging defendant's failure to negotiate in good faith.
Although the nondisclosure agreement provided that defendant
"desire[d] to participate in discussions regarding the
purchase of" plaintiff's business, it is clear from
the language of the agreement that neither party was
obligated to continue negotiating to the completion of such a
transaction (see Goodstein Constr. Corp. v City of New
York, 80 N.Y.2d 366, 373; see generally 180 Water
St. Assoc. v Lehman Bros. Holdings, 7 A.D.3d 316, 317).
respect to plaintiff's third cause of action, for fraud,
"[i]t is axiomatic that a cause of action for fraud does
not arise where... the fraud alleged relates to a breach of
contract" (Egan v New York Care Plus Ins. Co.,
277 A.D.2d 652, 653; see Genovese v State Farm Mut. Auto.
Ins. Co., 106 A.D.3d 866, 867), and "[a] fraud
claim is not sufficiently stated where it alleges that a
defendant did not intend to perform a contract with a
plaintiff when he made it" (Gordon v Dino De
Laurentiis Corp., 141 A.D.2d 435, 436). Here,
plaintiff's cause of action for fraud is based upon
allegations that defendant made false representations that it
was interested in purchasing plaintiff's business in
order to gain plaintiff's confidential information. Thus,
that cause of action fails because "the supporting
allegations do not concern representations which are
collateral or extraneous to the terms of the parties'
agreement" (Genovese, 106 A.D.3d at 867
[internal quotation marks omitted]).
we note that the parties' agreement specifically provides
for an award of attorneys' fees and expenses to the
prevailing party "in the event of litigation relating to
[the] [a]greement." Plaintiff failed to preserve for our
review his contention that the court erred in awarding
attorneys' fees and expenses to defendant without first
conducting a hearing inasmuch as plaintiff failed to request
such a hearing (see ...