Summary
affirming a jury verdict on a cause of action for fraud
Summary of this case from In re Gen. Motors LLCOpinion
August 10, 1995
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
The cause of action for breach of contract was properly dismissed as barred by the Statute of Frauds. According to plaintiff, Prudential had an obligation to extend it financial assistance "whenever help was required" with "no time constraint". Only plaintiff had the ability to terminate the alleged contract by its unilateral exercise of a power to cancel upon a breach by Prudential. Agreements that are terminable within one year only upon a breach by one of the parties fall within the Statute of Frauds. A breach cannot be equated with performance of the agreement. Accepting plaintiff's version of the alleged contract, there was no mutuality of the ability to terminate or even a unilateral option to terminate within one year, but only termination upon defendant's breach ( D N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 456; Americana Petroleum Corp. v Northville Indus. Corp., 200 A.D.2d 646, 647).
The cause of action for tortious interference with business relations was properly dismissed for failure to allege that defendants' acts were "prompted solely by malice or ill will and exceed[ed] the bounds of legitimate, robust competition" ( Mandelblatt v. Devon Stores, 132 A.D.2d 162, 168). Plaintiffs alleged instead that the Prudential defendants acted out of the financially motivated desire to save the various limited partnership ventures. The cause of action under the Racketeer Influenced and Corrupt Organizations Act is not ripe for determination. Plaintiffs' claimed losses are presently too theoretical to be fairly linked with the alleged predicate acts ( see, Miranda v. Ponce Fed. Bank, 948 F.2d 41, 48; First Nationwide Bank v. Gelt Funding Corp, 27 F.3d 763, 769, cert denied ___ US ___, 115 S Ct 728). The cause of action for fraud, based on the allegation that the Prudential defendants misrepresented their intent to perform the alleged contract was properly dismissed. A breach of contract does not give rise to a cause of action for fraud ( Bencivenga Co. v. Phyfe, 210 A.D.2d 1011). However, the cause of action for fraud based on the allegation that defendants failed to disclose certain key facts concerning the limited partnerships was improperly dismissed. There is a duty to disclose, which is not limited to parties in privity of contract ( Blair Communications v. Reliance Capital Group, 157 A.D.2d 490, 492), when nondisclosure would "le[a]d the person to whom it was or should have been made to forego action that might otherwise have been taken for the protection of that person" ( Caracci v. State of New York, 203 A.D.2d 842, 844). Plaintiffs' allegations of fraud by nondisclosure are sufficient, as against defendant Darr and the Prudential defendants, to withstand a motion pursuant to CPLR 3211 ( see, McGill v. Parker, 179 A.D.2d 98, 105). However, as against defendant TCAP, no particular, separate pleadings of fraud are made on any theory, and dismissal of the entire complaint as against that defendant was proper.
Concur — Ellerin, J.P., Ross, Tom and Mazzarrelli, JJ.