Triad Intl. Corp. v Cameron Indus., Inc.

Triad Intl. Corp. v Cameron Indus., Inc. 2014 NY Slip Op 08233 Decided on November 25, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 25, 2014
Gonzalez, P.J., Mazzarelli, Manzanet-Daniels, Gische, Clark, JJ.
13590 652744/12

[*1] Triad International Corp., Plaintiff-Appellant,

v

Cameron Industries, Inc., et al., Defendants-Respondents.

Lazarus & Lazarus, P.C., New York (Michael E. Murav of counsel), for appellant.

Schlacter & Associates, New York (Jed R. Schlacter of counsel), for respondents.

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.

Plaintiff's 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 (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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 25, 2014

CLERK