Opinion
January 5, 1999.
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
Section 733.212 (1) (a) and (4) (a), and section 733.702 (1) and (3) of Florida's Probate Code (Fla Stat Annot, ch 733), require that claims against a Florida estate be filed within 90 days of the publication, in a local newspaper, of a notice of administration. The IAS Court correctly concluded that these Florida statutes are applicable to the claim asserted herein (see, Matter of Redding, 177 Misc. 987; Bachorik v. Allied Control Co., 56 Misc.2d 982, affd 31 A.D.2d 891). Marine Midland Bank v. United Mo. Bank ( 223 A.D.2d 119), relied upon by plaintiff, does not require a contrary result. Crucial to the determination in that case were the facts that the promissory notes sued upon expressly provided that New York law would govern any action to enforce them and that the decedent therein had consented to personal jurisdiction in New York. In this case, there is no showing of any such provision in either the will or other document relied upon (see, Matter of Fabbri, 2 N.Y.2d 236, 239). Accordingly, plaintiff's claims for breach of an oral agreement and fraud in the inducement were properly dismissed as untimely under the Florida statute. The fraud claim, we note, was, in any case, independently dismissible as duplicative of the breach of contract claim, since the mere additional allegation that the decedent did not intend to keep his promises when he made them was insufficient to convert the underlying claim for breach of promise into one for fraud (see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318; DePinto v. Ashley Scott, Inc., 222 A.D.2d 288).
Concur — Ellerin, J.P., Nardelli, Wallach and Rubin, JJ.