Abelman v. Shoratlantic Development Co., Inc.

• Decision Date: 11 September 1989
• Citation: 153 A.D.2d 821,545 N.Y.S.2d 333
• Parties: William ABELMAN, et al., Appellants, v. SHORATLANTIC DEVELOPMENT CO., INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 333

545 N.Y.S.2d 333

153 A.D.2d 821

William ABELMAN, et al., Appellants, v. SHORATLANTIC DEVELOPMENT CO., INC., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 11, 1989.

Edward L. Birnbaum, New York City (Herbert Rubin, John Schwartz and Miriam Skolnik, of counsel), for appellants.

Spellman & Walsh, Garden City (John M. Spellman and Michael G. Leavy, of counsel), for respondents Shoratlantic Development Co., Inc., Dor-Gen Corp. and The Breakers at Atlantic Beach.

Kwiatkowski & Ryan, Floral Park (John E. Ryan, of counsel), for respondents Gencorelli & Salo Architects, P.C., and Francis W. Gencorelli.

O'Reilly & Marsh, P.C., Mineola (William G. Wallace, of counsel), for respondent Fidelity New York FSB.

Before BRACKEN, J.P., and RUBIN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal (1) from an order and judgment (one paper) of the Supreme Court, Nassau County (DiNoto, J.), dated August 12, 1988, which, upon granting the motion of the defendant Fidelity New York FSB to dismiss the amended complaint insofar as it is asserted against it and upon granting those branches of the motions of the remaining defendants which were to dismiss the sixth cause of action of the complaint alleging fraud, is in favor of the defendant Fidelity New York FSB and against them and dismisses the sixth cause of action against all defendants, and (2) from an order to the same court, dated September 28, 1988, which denied the plaintiffs' motion for reargument.

ORDERED that the order and judgment is affirmed; and it is further

ORDERED that the appeal from the order is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the respondents appearing separately and filing separate briefs, are awarded one bill of costs.

The court properly dismissed the sixth cause of action in the amended complaint alleging fraud against the defendants. The plaintiffs alleged that the defendants had perpetrated a fraud upon them by their failure to adhere to the plans and specifications detailed in the prospectuses and offering plans tendered in connection with the sale by the defendants of their homes.

In the case of Pope v. New York Property Ins. Underwriting Assn., 112 A.D.2d 984, 985, 492 N.Y.S.2d 796, we recently wrote:

"[I]t is well settled that an allegation of fraud based upon a statement of future intention must allege facts sufficient to show that the party, at the time the promissory representation was made, never intended to honor or act on those statements (see, Boylan v Morrow Co., 63 NY2d 616, 619 [479 N.Y.S.2d 499, 468 N.E.2d 681]; Lanzi v Brooks, 54 AD2d 1057, 1058 , affd 43 NY2d 778 [402 N.Y.S.2d 384, 373 N.E.2d 278], mot to amend remittitur granted 43 NY2d 947 [403 N.Y.S.2d 896, 374 N.E.2d 1247]; Grossberg v Grossberg, 104 AD2d 439, 440 ".

Any inference drawn from the fact that the expectation of performance was not realized is insufficient to sustain a plaintiff's burden of showing that a defendant falsely stated his intentions (see, Lanzi v. Brooks, 54 A.D.2d 1057, 1058, 388 N.Y.S.2d 946, affd. 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278). Since, in the instant case, the amended complaint was totally devoid of factual allegations that the defendants knew, at the time the statements were uttered, that they were false, and that at that time the defendants had the then present intent to deceive, the cause of action to recover damages for fraud cannot stand. We note the plaintiffs' argument that the Supreme Court should have granted them leave to replead the fraud cause of action. However, the plaintiffs did not, in opposition to the motions to dismiss, comply with the statutory mandate that they set forth and support a request for such relief (CPLR 3211[e]; see, Bardere v. Zafir, 63 N.Y.2d 850, 482 N.Y.S.2d 261, 472 N.E.2d 37; Fleet Factors Corp. v. Werblin, 138 A.D.2d 565, 567, 526 N.Y.S.2d 147). Moreover, although the plaintiffs included a generalized request for leave to replead on their motion to reargue, that request and the implicit denial thereof are not properly before us (cf., Kartiganer Assocs. v. Town of New Windsor, 132 A.D.2d 527, 517 N.Y.S.2d 266).

Nor...