Opinion
2001-08569
Argued December 17, 2002.
March 10, 2003.
In an action, inter alia, to recover damages for breach of contract, the defendant First American Title Insurance Company of New York appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated August 21, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Dollinger, Gonski Grossman, Carle Place, N.Y. (Matthew Dollinger, Leslie A. Foodim, and Floyd G. Grossman of counsel), for appellant.
Douglas A. Durnin, Massapequa, N.Y., for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the second, third, and fourth causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff's second cause of action, sounding in negligence, is time-barred and therefore should have been dismissed (see CPLR 214; DiPilato v. Martinelli, 274 A.D.2d 412).
A cause of action to recover damages for fraud will not arise when the only fraud charged relates to a breach of contract (see Lavi v. Lavi, 256 A.D.2d 602, 604; Crowley Mar. Assoc. v. Nyconn Assoc., 292 A.D.2d 334). Therefore, the third cause of action should have been dismissed.
Moreover, after the appellant made out a prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether there was an agreement between the parties authorizing an award of an attorney's fee (see Maliner-Colvin v. 85-10 34th Ave. Apt. Corp., 284 A.D.2d 434; Severino v. Classic Collision, 280 A.D.2d 463). Accordingly, the fourth cause of action should have been dismissed.
The appellant's remaining contentions are without merit.
FEUERSTEIN, J.P., KRAUSMAN, MASTRO and RIVERA, JJ., concur.