Opinion
May 16, 1991
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
Plaintiff MBW hired defendant, Century Business Credit Corp., as its credit collector. Due to dissatisfaction with defendant's performance under the contract, plaintiff terminated the contract. Aside from the breach of contract claims, plaintiff seeks damages for fraud alleging that defendant overstated both the nature of its services and its ability to perform, in order to obtain the contract, and subsequently misrepresented the services it was rendering in order to avoid or delay termination of the contract.
While we recognize that the same acts which give rise to a cause of action for fraud may also form the basis for a breach of contract claim (Davis v Dime Sav. Bank, 158 A.D.2d 50, 52), a cause of action for fraud will not arise if the alleged fraud merely relates to the breach of contract. (Miller v Volk Huxley, 44 A.D.2d 810.) In this case, the record demonstrates that all the causes of action stem from a failure to perform a contract. There has been no breach of a duty owed to plaintiff apart from that arising under the contract. Accordingly, dismissal of the first cause of action sounding in fraud was warranted.
Concur — Sullivan, J.P., Carro, Rosenberger, Kupferman and Rubin, JJ.