Opinion
June 18, 1999
Appeal from Order of Supreme Court, Cattaraugus County, Himelein, J. — Dismiss Pleading.
PRESENT: PINE, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of the motion of defendant Fairmont Homes, Inc., a/k/a Century Homes (Fairmont), seeking dismissal of the negligence causes of action against it. Because the complaint alleges only economic loss, plaintiffs are relegated to their contractual remedies (see, Bocre Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685, 689-690; Antel Oldsmobile-Cadillac v. Sirus Leasing Co., 101 A.D.2d 688, 689)
The court further erred in granting the cross motion of plaintiffs for leave to amend the complaint and in denying that part of the motion of Fairmont seeking dismissal of the fraud causes of action against it. "The addition of an allegation of scienter will not transform a breach of contract action into one to recover damages for fraud" (Geller v. Esikoff, 165 A.D.2d 863, 865-866). It is an abuse of discretion to grant leave when the amendment is patently without merit (see, Washburn v. Citibank [S. D.], 190 A.D.2d 1057; Lachajczyk v. Schriber, 155 A.D.2d 874). Because plaintiffs Perry T. Egbert and Marcy L. Egbert allege that they purchased their prefabricated home from a different manufacturer, that part of the motion of Fairmont seeking dismissal of the Egbert causes of action against it should have been granted. Finally, we agree with plaintiffs that the court did not abuse its discretion in denying Fairmont's motion for a severance without prejudice to renew after completion of discovery (see, CPLR 603).
We modify the order, therefore, by granting the motion of Fairmont in part and dismissing the fraud and negligence causes of action and the Egbert causes of action in their entirety against it and by denying plaintiffs' cross motion for leave to amend the complaint.