Opinion
November 9, 1993
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
Inasmuch as the jury found that Combustion Engineering's oral agreement of April 4, 1986 to assume Koppers' obligations under the Kamyr-Koppers agreements was not conditioned upon Kamyr's acceptance of the definition of the term "Systems" contained in the warranty that Koppers gave Combustion Engineering, it follows that such definition cannot be the basis of a claim by Kamyr that Combustion Engineering breached such oral agreement by refusing to accept an assignment of the Kamyr-Koppers agreements without change. Moreover, the alleged oral agreement violated the Statute of Frauds since it was to be performed for at least five years (General Obligations Law § 5-701 [a] [1]; see, Backus Plywood Corp. v Commercial Decal, 317 F.2d 339, 343, cert denied 375 U.S. 879), and was otherwise unenforceable because, void of most of the material terms of a contract, it was merely an agreement to agree (see, Willmott v Giarraputo, 5 N.Y.2d 250). Kamyr's fraud claim against Combustion Engineering was properly dismissed as restatement of its breach of contract claim (see, Megaris Furs v Gimbel Bros., 172 A.D.2d 209, 211). An allegation that one did not intend to perform a contract does not amount to a cause of action for fraud (see, Comtomark, Inc. v Satellite Communications Network, 116 A.D.2d 499). We have considered plaintiffs' other arguments and find them to be without merit.
Concur — Ellerin, J.P., Ross, Rubin and Nardelli, JJ.