Glenn Partition v. Trustees Columbia University City New York and Columbia University

[169 A.D.2d 488 Page 489] Although CPLR 3025 (b) provides that leave to amend a complaint shall be freely granted (Edenwald Contr. Co. v City of New
York, 60 N.Y.2d 957), this court has held that in determining whether to grant leave to amend the court must examine the underlying
merits of the causes of action asserted therein, since to do otherwise would constitute a waste of judicial resources. (Brennan
v City of New York, 99 A.D.2d 445.) Here, it was not an abuse of discretion to deny plaintiff's motion to amend the complaint.
Plaintiff's proposed amended complaint, seeking to add two new causes of action for fraud and misrepresentation based upon
the same factual allegations as in the original complaint, failed to state cognizable claims, since a cause of action for
fraud does not arise when the only fraud alleged relates to a breach of contract. (Metropolitan Transp. Auth. v Triumph Adv.
Prods., 116 A.D.2d 526.) Moreover, the proposed fraud claims were legally deficient because they relied upon alleged misrepresentations
of future intent (Rubenstein v East Riv. Tenants Corp., 139 A.D.2d 451, 454) and failed to plead fraud with sufficient particularity
as required by CPLR 3016 (b). (New York Fruit Auction Corp. v City of New York, 81 A.D.2d 159, affd 56 N.Y.2d 1015.) Finally,
we find that plaintiff's reliance upon Corinno Civetta Constr. Corp. v City of New York (67 N.Y.2d 297) and Kalisch-Jarcho,
Inc. v City of New York, (58 N.Y.2d 377) for the proposition that a fraud cause of action may be utilized to evade a no-damages-for-delay
clause in the parties' contract is misplaced, since their teaching is that a contractor's remedy for delay resulting from
willful or grossly negligent acts of the contractee remains exclusively in contract rather than in tort. (See, Corinno Civetta
Constr. Corp. v City of New York, supra, at 309; Kalisch-Jarcho, Inc. v City of New York, supra, at 385.)