McKernin v. Fanny Farmer Candy Shops, Inc. , 176 A.D.2d 233 ( 1991 )

— In an action to recover damages for fraud and breach of contract, (1) the defendant appeals from so much of an order of the Supreme Court, Nassau County (Morrison, J.), entered December 12, 1989, as denied that branch of its motion which was for summary judgment dismissing the first cause of action of the complaint, and (2) the plaintiff cross-appeals, as limited by his notice of appeal and brief, from so much of the same order as denied that branch of his cross motion which was for leave to amend the second cause of action of the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the defendant’s motion which was for summary judgment dismissing the first cause of action is granted, and that cause of action is dismissed, and it is further,

Ordered that the order is affirmed insofar as cross-appealed from, and it is further,

Ordered that the defendant is awarded one bill of costs.

The plaintiff commenced this action after several months of ultimately unsuccessful negotiations with the defendant for employment, and/or purchase of a substantial interest in the defendant corporation. The first cause of action alleged that representatives of the defendant fraudulently induced the plaintiff to provide them with business advice by promising to hire him as chief executive officer and to sell him a substantial ownership interest. The second and third causes of action alleged that oral agreements regarding the plaintiff’s employment and purchase of an ownership interest in the defendant were entered into by the parties and then breached by the defendant.

The defendant moved, inter alia, for summary judgment dismissing the complaint, and the plaintiff cross-moved, among other things, for leave to amend his second cause of action to recover damages for breach of the alleged employment contract. The Supreme Court dismissed the second and third causes of action pursuant to the Statute of Frauds, but found that the first cause of action adequately stated a cause of action to recover damages for fraud. It further held that issues of fact warranted the denial of summary judgment with respect to that cause of action. The court denied the plaintiff’s cross motion as academic in view of its disposition of the defendant’s motion.

We find that the motion for summary judgment should have been granted in its entirety and the complaint dismissed. It is well settled that where, as here, a claim to recover damages for fraud is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie (see, Mastropieri v Solmar Constr. Co., 159 AD2d 698; Tuck Indus. v Reichhold Chems., 151 AD2d 565; Manshul Constr. Corp. v City of New York, 143 AD2d 333; Edwil Indus. v Stroba Instruments Corp., 131 AD2d 425; Spellman v Columbia Manicure Mfg. Co., 111 AD2d 320; cf., Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954). The application of this principle to the facts of the instant case mandates the dismissal of the plaintiff’s cause of action sounding in fraud.

We further find that the denial of leave to the plaintiff to amend his second cause of action was appropriate. The proposed factual allegations which the plaintiff sought to add would radically alter the terms of the alleged employment contract and are not supported by the record (see, Citrin v Royal Ins. Co., 172 AD2d 795). Moreover, the plaintiff has failed to demonstrate a reasonable excuse for his delay in seeking to rectify what he contends is a fundamental factual error (see, Ross v Ross, 143 AD2d 429; Gallo v Aiello, 139 AD2d 490). In any event, even if the proposed amendment were permitted, the second cause of action would still be barred by the Statute of Frauds. Thompson, J. P., Sullivan and Harwood, JJ., concur.