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GoSMILE, INC. v. LEVINE

601148/09, 36423642A.

81 A.D.3d 77 (2010)

915 N.Y.S.2d 521

GoSMILE, INC., Appellant, v. JONATHAN B. LEVINE, D.D.S., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 21, 2010.

Attorney(s) appearing for the Case

Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago, Illinois ( Wendi E. Sloane , Heather J. Macklin and Sarah B. Waxman of the bar of the State of Illinois, admitted pro hac vice, of counsel), and Flemming Zulack Williamson Zauderer LLP, New York City ( Jonathan D. Lupkin , Mark C. Zauderer and Kimberly A. Pallen of counsel), for appellant.

Davidoff Malito & Hutcher LLP, New York City ( Joshua Krakowsky and Larry Hutcher of counsel), and Ressler & Ressler, New York City ( Ellen Werther of counsel), for respondent.

TOM, J.P., ANDRIAS and DeGRASSE, JJ., concur with ACOSTA, J.; NARDELLI, J., dissents in part in a separate opinion.

OPINION OF THE COURT

ACOSTA, J.

In this appeal we are asked to consider whether a plaintiff is permitted to assert claims for both fraud and breach of contract where the fraud claim is based upon allegations that defendant induced plaintiff to enter into a contract based on a misrepresentation of present fact. We answer in the affirmative.

In 2002, defendant, and his wife (collectively, the Levines...

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