Jacob Karl v. Mobil Oil Company

Order unanimously modified in accordance with memorandum, with costs to defendant, and, as modified, affirmed. Motion to strike material from respondents brief denied. Memorandum: The motion to add a new cause of action for fraud by service of a supplemental complaint should have been denied because that cause of action is palpably insufficient. The contract for the sale of gasoline by the defendant to the plaintiff expressly provides that "[quantities] shall be computed without temperature adjustment." The failure of defendant to inform plaintiff that defendants supplier, in billing defendant, made an allowance for shrinkage due to temperature, does not constitute fraud by concealment, since defendant was under no obligation to reveal this information (see 24 NY Jur, Fraud and Deceit, § 114). That portion of the supplemental complaint alleging additional deliveries of gasoline and additional shortages after the service of the original complaint is [90 A.D.2d 992 Page 993]