GUERRERA v. FOUNDATION TITLE & ESCROW CORP.


303 A.D.2d 456 (2003)

755 N.Y.S.2d 900

SALVATORE GUERRERA, Respondent, v. FOUNDATION TITLE & ESCROW CORP., Defendant, and FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 10, 2003.


Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the second, third, and fourth causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff's second cause of action, sounding in negligence, is time-barred and therefore should have been dismissed (see CPLR 214 [5]; DiPilato v Martinelli, 274 A.D.2d 412 [2000]).

A cause of action to recover damages for fraud will not arise when the only fraud charged relates to a breach of contract (see Lavi v Lavi, 256 A.D.2d 602, 604 [1998]; Crowley Mar. Assoc. v Nyconn Assoc., 292 A.D.2d 334 [2002]). Therefore, the third cause of action should have been dismissed.

Moreover, after the appellant made out a prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether there was an agreement between the parties authorizing an award of an attorney's fee (see Maliner-Colvin v 85-10 34th Ave. Apt. Corp., 284 A.D.2d 434 [2001]; Severino v Classic Collision, 280 A.D.2d 463 [2001]). Accordingly, the fourth cause of action should have been dismissed.

The appellant's remaining contentions are without merit.


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