Purnavel v. Tel-A-Car of New York, Inc., TEL-A-CAR

• Decision Date: 02 May 1994
• Docket Number: TEL-A-CAR
• Citation: 611 N.Y.S.2d 599,204 A.D.2d 297
• Parties: Gabriel PURNAVEL, et al., Respondents, v.OF NEW YORK, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 599

611 N.Y.S.2d 599

204 A.D.2d 297

Gabriel PURNAVEL, et al., Respondents, v. TEL-A-CAR OF NEW YORK, INC., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

May 2, 1994.

Louis Biancone, New York City, for appellants.

Bohmart & Sacks, P.C., New York City (Joel K. Bohmart, of counsel), for respondents.

Before SULLIVAN, J.P., and O'BRIEN, SANTUCCI and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract and constructive fraud, the defendants appeal from an order of the Supreme Court, Queens County (Posner, J.), entered July 28, 1992, which denied their motion to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was to dismiss the second cause of action asserted in the complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

We find that the instant action is not barred by virtue of the plaintiff Purnavel's proceeding in Small Claims court on the matter of wages lost between September and October 1990 (CCA 1808) inasmuch as the New York City Civil Court Act 1808 states that a small claims judgment "may be pleaded as res judicata only as to the amount involved in the [small claim] and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court".

The plaintiffs have made out a cause of action to recover damages for breach of contract as against the corporate defendants; thus that branch of the defendants' motion which was to dismiss the first cause of action was properly denied.

However, inasmuch as "[a] cause of action sounding in fraud does not lie where a claim is based upon the same allegations as give rise to a breach of contract cause of action" (Guerrero v. Valiando, 197 A.D.2d 667, 602 N.Y.S.2d 882; see also, Noufrios v. Murat, 193 A.D.2d 791, 598 N.Y.S.2d 82; Brenner v. De Bruin, 186 A.D.2d 701, 589 N.Y.S.2d 56; McKernin v. Fanny Farmer Candy Shops, 176 A.D.2d 233, 574 N.Y.S.2d 58). The plaintiffs' second cause of action to recover compensatory and punitive damages for constructive fraud is dismissed.

We have examined the defendants' remaining contentions and find them to be without merit.