Majority
p. 531Triad International Corp., Appellant, v Cameron Industries, Inc., et al., Respondents. [998 NYS2d 13]
Order, Supreme Court, New York County (Eileen Bransten, J), entered on or about September 6, 2013, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint as against defendant Khayyam, unanimously affirmed, without costs.
Flaintiffis fraud claim against Khayyam is duplicative of its contract claim against defendant Cameron Industries, Inc., since plaintiff seeks the same compensatory damages for both claims
p. 532
(see Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896 , 898-899 [2d Dept 2010]; Mañas v VMS Assoc., LLC, 53 AD3d 451 , 454 [1st Dept 2008]). On appeal, plaintiff seeks to amend its complaint. However, its purported fraud damages are actually contract damages. Plaintiff seeks to be placed in the same position that it would have been in had Cameron performed (i.e., made payment) under the contract (see Mañas, 53 AD3d at 454 ). Therefore, repleading would be futile (see e.g. Megaris Furs v Gimbel Bros., 172 AD2d 209 [1st Dept 1991]; Teachers Ins. Annuity Assn. of Am. v Cohen’s Fashion Opt. of 485 Lexington Ave., Inc., 45 AD3d 317 , 319 [1st Dept 2007]).
Concur — Gonzalez, EJ., Mazzarelli, Manzanet-Daniels, Gische and Clark, JJ. [Prior Case History: 2013 NY Slip Op 32099OJ).]
Cases cited
- Introna v. Huntington Learning Centers, Inc. 78 AD3d 896 at 898-899 p. 532
- Mañas v. VMS Associates, LLC 53 AD3d 451 at 454 p. 532
- Megaris Furs, Inc. v. Gimbel Brothers, Inc. 172 AD2d 209 p. 532
- Teachers Insurance Annuity Ass'n of America v. Cohen's Fashion Optical of 485 Lexington Avenue, Inc. 45 AD3d 317 at 319 p. 532