Ruse v. Inta-Boro Two-Way Radio Taxi Assoc., Inc.

• Decision Date: 22 October 1990
• Docket Number: INTA-BORO,TWO-WAY
• Citation: 561 N.Y.S.2d 70,166 A.D.2d 641
• Parties: Serban P. RUSE, Appellant, v.RADIO TAXI ASSOC., INC., et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 70

561 N.Y.S.2d 70

166 A.D.2d 641

Serban P. RUSE, Appellant, v. INTA-BORO TWO-WAY RADIO TAXI ASSOC., INC., et al Respondents, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Oct. 22, 1990.

Serban P. Ruse, Rego Park, appellant pro se.

Alan H. Joseph, Glendale, for respondents.

Before LAWRENCE, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for fraud and breachof contract, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Durante, J.), entered January 26, 1989, as limited his award to $30,000 without interest and dismissed his cause of action to recover damages for fraud.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff argues that questions of fact exist which warrant jury consideration. We disagree. In order to recover damages for fraud, "the plaintiff must prove: (1) a misrepresentation of fact, (2) which was false and known to be false by the defendant, (3) that the representation was made for the purpose of inducing the other party to rely upon it, (4) the other party justifiably did so rely, (5) causing injury" (Clearview Concrete Prods. Corp. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 467, 453 N.Y.S.2d 750; see also, Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833; Roney v. Janis, 77 A.D.2d 555, 430 N.Y.S.2d 333, affd 53 N.Y.2d 1025, 442 N.Y.S.2d 484, 425 N.E.2d 872; Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186; Restatement [Second] of Torts § 525; 60 NY Jur 2d, Fraud and Deceit, § 11). Because the plaintiff failed to adduce any evidence that the defendants made any misrepresentations to him, his cause of action to recover damages for fraud was properly dismissed.

We also reject the plaintiff's contention that questions of fact existed regarding the cause of action to recover damages for breach of contract. That cause of action is barred on the ground of res judicata, as it was already rejected in a prior action before the Civil Court (see, Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807; Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328; Matter of Reilly v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645, 379 N.E.2d 172; Shaid v. Consolidated Edison Co. of N.Y., 95 A.D.2d 610, 467 N.Y.S.2d 843). In any event, the plaintiff...