Glenn Partition, Inc. v. Trustees of Columbia University in City of New York

• Decision Date: 15 January 1991
• Citation: 564 N.Y.S.2d 361,169 A.D.2d 488
• Parties: GLENN PARTITION, INC., Plaintiff-Appellant, v. The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK and Columbia University, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 361

564 N.Y.S.2d 361

169 A.D.2d 488

GLENN PARTITION, INC., Plaintiff-Appellant, v. The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK and Columbia University, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Jan. 15, 1991.

Before CARRO, J.P., and ELLERIN, ROSS, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (David Edwards, J.), entered on or about September 6, 1989, which, inter alia, denied plaintiff's motion pursuant to CPLR Section 3025(b) to amend the complaint, unanimously affirmed, with costs.

Although CPLR Section 3025(b) provides that leave to amend a complaint shall be freely granted (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164), this Court has held that in determining whether to grant leave to amend the court must examine the underlying merits of the causes of action asserted therein, since, to do otherwise, would constitute a waste of judicial resources. (Brennan v. City of New York, 99 A.D.2d 445, 470 N.Y.S.2d 621.)

Here, it was not an abuse of discretion to deny plaintiff's motion to amend the complaint. Plaintiff's proposed amended complaint, seeking to add two new causes of action for fraud and misrepresentation based upon the same factual allegations as in the original complaint, failed to state cognizable claims, since a cause of action for fraud does not arise when the only fraud alleged relates to a breach of contract. (Metropolitan Transportation Authority v. Triumph Advertising Productions, Inc., 116 A.D.2d 526, 497 N.Y.S.2d 673.)

Moreover, the proposed fraud claims were legally deficient because they relied upon alleged misrepresentations of future intent (Rubenstein v. East River Tenants Corp., 139 A.D.2d 451, 454, 527 N.Y.S.2d 29), and failed to plead fraud with sufficient particularity as required by CPLR Section 3016(b). (New York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159, 439 N.Y.S.2d 648, aff'd, 56 N.Y.2d 1015, 453 N.Y.S.2d 640, 439 N.E.2d 356).

Finally, we find that plaintiff's reliance upon Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 502 N.Y.S.2d 681, 493 N.E.2d 905 and Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413 for the proposition that a fraud cause of action may be utilized to evade a no-damages-for-delay clause in the parties' contract, is misplaced, since, their teaching is that a contractor's remedy...