MARSHEL v. FARLEY


21 A.D.3d 935 (2005)

800 N.Y.S.2d 760

ARNOLD MARSHEL, Appellant, v. THOMAS F. FARLEY et al., Respondents, et al., Defendants.

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

September 12, 2005.


Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

Since no cause of action to recover damages for fraud will arise when the only fraud charged relates to a breach of contract, the Supreme Court correctly dismissed the cause of action alleging fraud insofar as asserted against the respondents (see Guerrera v. Foundation Tit. & Escrow Corp., 303 A.D.2d 456 [2003]; Crowley Mar. Assoc. v. Nyconn Assoc., 292 A.D.2d 334 [2002]; Weitz v. Smith, 231 A.D.2d 518, 519 [1996]; Courageous Syndicate v. People-to-People Sports Comm., 141 A.D.2d 599, 600 [1988]; Jackson Hgts. Med. Group v. Complex Corp., 222 A.D.2d 409 [1995]). Moreover, "`[u]nder ordinary circumstances, an attorney who does not represent a party may only be held liable to that party upon a showing of fraud or collusion, or a malicious or tortious act'" (Nihalani v. Tekhomes, Inc., 177 A.D.2d 484 [1991], quoting Krasne v. Gedell, 147 A.D.2d 616, 618 [1989]). Since there was no showing in this case that the attorney Thomas F. Farley acted fraudulently, collusively, maliciously, or tortiously in advising his clients, who allegedly broke their contract with the plaintiff, the Supreme Court properly dismissed the complaint insofar as asserted against the attorney.


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