International Plaza Assoc., L.P. v. Lacher

• Decision Date: 16 June 2009
• Docket Number: 826.
• Citation: International Plaza Assoc., L.P. v. Lacher, 63 A.D.3d 527, 881 N.Y.S.2d 78, 2009 NY Slip Op 4954 (N.Y. App. Div. 2009)
• Parties: INTERNATIONAL PLAZA ASSOCIATES, L.P., Respondent, v. MICHAEL A. LACHER et al., Appellants and Third-Party Plaintiffs-Appellants. DAVID NEVINS et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

63 A.D.3d 527

881 N.Y.S.2d 78

2009 NY Slip Op 04954

INTERNATIONAL PLAZA ASSOCIATES, L.P., Respondent, v. MICHAEL A. LACHER et al., Appellants and Third-Party Plaintiffs-Appellants DAVID NEVINS et al., Third-Party Defendants-Respondents.

826.

Appellate Division of the Supreme Court of New York, First Department.

Decided June 16, 2009.

Order, Supreme Court, New York County (Debra A. James, J.), entered April 18, 2008, which, to the extent appealed from as limited by the briefs, granted the CPLR 3211 motion of plaintiff and third-party defendants David Nevins and Charles Steven Cohen (1) dismissing the second counterclaim alleging fraudulent inducement; (2) dismissing the claims for punitive damages; and (3) dismissing the third-party claims against Nevins and Cohen, unanimously affirmed, with costs.

The motion court properly determined that defendants' second counterclaim failed to allege fraud extraneous and collateral to the contract. The second counterclaim simply alleges that plaintiff failed to fulfill its contractual obligations to provide cleaning services and make certain improvements, and as such is merely a restatement of defendants' third and fourth counterclaims for breach of contract (see Briefstein v Rotondo Constr. Co., 8 AD2d 349, 351 [1959]).

The motion court properly dismissed the third-party claims alleging fraud based on the rationale that defendants fail to allege reasonable reliance. As the motion court reasoned, the terms of the lease, including the no oral modification clause, preclude reasonable reliance on the alleged "misrepresentations," which are either at variance with the terms of the lease, or pertain to negotiations for a new lease which never came to fruition (see Aris Indus. v 1411...