Fort Ann Cent. School Dist. v. Hogan

• Decision Date: 21 July 1994
• Citation: 206 A.D.2d 723,614 N.Y.S.2d 803
• Parties: , 93 Ed. Law Rep. 256 FORT ANN CENTRAL SCHOOL DISTRICT, Respondent, v. Richard P. HOGAN, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 803

614 N.Y.S.2d 803

206 A.D.2d 723, 93 Ed. Law Rep. 256

FORT ANN CENTRAL SCHOOL DISTRICT, Respondent, v. Richard P. HOGAN, Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Third Department.

July 21, 1994.

Gleason, Dunn, Walsh & O'Shea (Ronald G. Dunn, of counsel), Albany, for appellant.

Bartlett, Pontiff, Stewart & Rhodes P.C. (Gary C. Hobbs, of counsel), Glens Falls, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and CASEY, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Dier, J.), entered December 1, 1993 in Washington County, which denied defendant Richard P. Hogan's motion to dismiss the first three causes of action of the complaint against him.

Defendant Richard P. Hogan was employed by plaintiff under a written contract signed in December 1985 as its Superintendent of Schools. The contract gave Hogan broad general powers and provided that he was to perform all the duties of Superintendent of Schools as prescribed by the laws of New York and the rules and regulations of plaintiff, including all duties imposed on or granted to a Superintendent of Schools under the Education Law or by rule or regulation of the Commissioner of Education. As a result of financial reports made to plaintiff's Board of Education showing that plaintiff had a positive balance in its general fund when there was apparently a substantial deficit, plaintiff brought this action charging Hogan with breach of contract, fraud and negligent misrepresentation, alleging that he failed to properly supervise plaintiff's finances and misinformed plaintiff as to its actual financial status during the years 1990-1991 and 1991-1992.

On this appeal Hogan does not contest Supreme Court's failure to dismiss the first cause of action for breach of contract, but argues that the second and third causes of action for fraud and negligent misrepresentation should be dismissed since they fail to meet the stringent pleading requirements of CPLR 3016(b).

Generally, in a motion to dismiss pursuant to CPLR 3211(a)(7), the court must construe the complaint liberally in favor of the plaintiff, accepting the facts alleged as true and determining whether they fit into any cognizable legal theory, with the pleader being entitled to every favorable inference that may be drawn (see, Quail Ridge Assocs. v. Chemical Bank, 162 A.D.2d 917, 558 N.Y.S.2d 655, appeal dismissed 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674; Kermisch v. Avis Rent A Car Sys., 71 A.D.2d 790, 419 N.Y.S.2d 793). However, where fraud or misrepresentation is charged, CPLR 3016(b) requires that the misrepresentation must be pleaded in detail so as to clearly inform the defendant with respect to the incident complained of and give notice of the allegations the plaintiff intends to prove (see, Lanzi v. Brooks, 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278; I. Shulman & Son v. Jorling, 189 A.D.2d 1012, 592 N.Y.S.2d 858; Samaritan Hosp. v. McManus, Longe, Brockwehl, 92 A.D.2d 957, 460 N.Y.S.2d 842). Assuming, arguendo, that the causes of action for fraud and negligent misrepresentation are stated in sufficient detail to satisfy CPLR 3016(b), we nevertheless find that they should be dismissed.

It is well settled that a simple breach of contract is not to be considered a tort unless a legal duty...