Plaintiffs' cause of action for fraud, which alleges that defendants knew at the time of contract execution that their warranty therein against undisclosed liabilities burdening the property was false, was properly dismissed as duplicative of plaintiffs' cause of action for breach of contract. The fraud alleged is based on the same facts as underlie the contract claim and is not collateral to the contract and no damages are alleged that would not be recoverable under a contract measure of damages ( cf., Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954; Big Apple Car v. City of New York, 234 A.D.2d 136, 138, distinguishing Graubard Mollen Dannett Horowitz v. Moskovitz, 86 N.Y.2d 112, 122; see also, Papa's-June Music v. McLean, 921 F. Supp. 1154, 1161-1162).
Concur — Sullivan, J.P., Milonas, Wallach, Williams and Colabella, JJ.