Raytheon Co. v AES Red Oak, LLC

Raytheon Co. v AES Red Oak, LLC 2007 NY Slip Op 01607 [37 AD3d 364] February 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Raytheon Company, Respondent,
v
AES Red Oak, LLC, Appellant.

—[*1] Marcus Rosenberg & Diamond LLP, New York (David Rosenberg of counsel), for appellant. Bingham McCutchen LLP, Boston, MA (Jonathan M. Albano, of the Massachusetts bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 9, 2006, which, to the extent appealed from, granted plaintiff partial summary judgment dismissing the fourth and fifth counterclaims in the amended answer, unanimously affirmed, with costs.

In this action for breach of a construction contract in which defendant counterclaims for breach of a settlement agreement and its fraudulent inducement, the fraud counterclaims were properly dismissed on the ground that the required elements of a false statement and justifiable reliance (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]) were both clearly contradicted by documentary evidence. The very mechanical problem whose resolution defendant claims was misrepresented was specifically exempted from the releases and was included on a punch list. Plaintiff's July 24, 2002 letter containing the alleged written misrepresentation stated there would be further testing, indicating that the asserted clearance by the supplier was only tentative. Moreover, the allegation of an oral misrepresentation did not particularize when or by whom it had been made (CPLR 3016 [b]). In addition, we agree that the fraud claims were not collateral or extraneous to the alleged breach of contract (see Coppola v Applied Elec. Corp., 288 AD2d 41 [2001]).

We have considered defendant's other contentions, including that summary judgment was premature, and find them unavailing. Concur—Sullivan, J.P., Williams, Gonzalez, Sweeny and Kavanagh, JJ.