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BENCIVENGA COMPANY, CPAs, P.C., Appellant, v. JAMES D. PHYFE et al., Respondents.

Plaintiff's proposed causes of action based on fraud were palpably insufficient, and thus leave to amend was properly denied. A cause of action based upon breach of contract cannot be converted into one for fraud merely by alleging that defendants did not intend to fulfill the contract (Glenn Partition v Trustees of Columbia Univ., 169 A.D.2d 488). Plaintiff's claims of alleged fraudulent inducement are based on future intent, and are thus also deficient (see, Gordon v De Laurentiis Corp., 141 A.D.2d 435, 436).

Concur — Ellerin, J.P., Wallach, Ross and Williams, JJ.

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BENCIVENGA COMPANY, CPAS v. PHYFE
(Dec 1, 1994)