Giambrone v. Owens , 167 A.D.2d 841 ( 1990 )

Order unanimously reversed on the law without costs and motion granted dismissing the fifth and sixth causes of action in the complaint. Memorandum: Supreme Court should have granted defendants’ motion to dismiss plaintiffs’ fifth cause of action. Plaintiffs’ complaint did not allege sufficient factual assertions from which the conclusion could be drawn that defendants had a present intent not to carry out the promises of future action, and thus it failed to state a cause of action based on future intention (see, Lanzi v Brooks, 54 AD2d 1057, affd 43 NY2d 778). Moreover, plaintiffs may not turn this breach of contract cause of action into one for fraud merely by alleging that defendants, at the time the promise was made, did not intend to perform the contract (see, Spellman v Columbia Manicure Mfg. Co., 111 AD2d 320).

Supreme Court erred in not dismissing plaintiffs’ sixth cause of action. Plaintiffs alleged that, after closing, defendant Owens represented to them that he constructed the basement floor, foundation, and drainage system with eight inches of crushed stone and drain tile, but that upon subsequent inspection by plaintiffs, the representations were proven to be false. Plaintiffs have failed to allege or establish that, at the time the basement was constructed, defendants made any representations that plaintiffs relied upon regarding the amount of materials placed in the basement foundation. Thus, the complaint fails to allege that defendant Owens falsely stated his future intentions (see, Lanzi v Brooks, supra). (Appeal from order of Supreme Court, Ontario County, Curran, J.—dismiss causes of action.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.