P. Chimento Co. v. Banco Popular De Puerto Rico

Judgment, Supreme Court, New York County (Martin Schoenfeld, J.), entered October 26, 1993, which granted defendants' motion
to dismiss the complaint at the close of plaintiff's case pursuant to CPLR 4401 and awarded judgment to defendants, unanimously
affirmed, with costs. The trial court properly determined that plaintiff did not establish a prima facie case on any of the three causes of action
in the complaint. In that regard, the law is settled that in order to establish fraud, the following elements must be demonstrated:
(1) misrepresentation of a material fact; (2) scienter; (3) justifiable reliance; and (4) injury or damages (Gouldsbury v.
Dan's Supreme Supermarket, 154 A.D.2d 509, 510-511, 546 N.Y.S.2d 379, lv denied 75 N.Y.2d 701). Plaintiff's proof failed to
demonstrate most of the allegations of fraud. As was explained in Brown v. Lockwood, 76 A.D.2d 721, 731, 432 N.Y.S.2d 186
[citations omitted], "it is a general rule that fraud cannot be predicated upon statements which are promissory in nature
at the time they are made and which relate to future actions or conduct. Mere unfulfilled promissory statements as to what
will be done in the future are not actionable as fraud . . . .").