        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1267
CA 15-00185
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


ARTHUR GERBER, DOING BUSINESS AS NOOTEN SCALE
SERVICE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EMPIRE SCALE, DOING BUSINESS AS PRECISION
SCALE & BALANCE, DEFENDANT-RESPONDENT.


ANGELO T. CALLERI, P.C., ROCHESTER (ANGELO T. CALLERI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HARTER SECREST & EMERY LLP, ROCHESTER (CANDACE M. CURRAN ESPINOSA OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered April 2,
2014. The order and judgment denied plaintiff’s motion to compel
discovery and granted the cross motion of defendant for summary
judgment dismissing the complaint and for attorney’s fees.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order and judgment that
denied his motion to compel discovery and granted the cross motion of
defendant for summary judgment dismissing the complaint and for
attorneys’ fees. We affirm.

     Contrary to plaintiff’s contention, Supreme Court properly denied
his motion to compel discovery because plaintiff offered mere
speculation that facts essential to opposing defendant’s cross motion
for summary judgment were in defendant’s “exclusive knowledge and
possession and could be obtained by discovery” (Resetarits Constr.
Corp. v Elizabeth Pierce Olmsted, M.D. Ctr. for the Visually Impaired
[appeal No. 2], 118 AD3d at 1456 [internal quotation marks omitted];
see Eagen v Harlequin Books, 229 AD2d 935, 936).

     Contrary to plaintiff’s further contention, defendant met its
initial burden of establishing its entitlement to summary judgment
dismissing plaintiff’s first cause of action alleging a breach of the
parties’ nondisclosure agreement. Defendant tendered evidentiary
proof in admissible form that it did not breach the agreement (see
generally Zuckerman v City of New York, 49 NY2d 557, 562), a necessary
element of a breach of contract cause of action (see Resetarits
                                 -2-                          1267
                                                         CA 15-00185

Constr. Corp., 118 AD3d at 1455). Although the affidavits submitted
by defendant contained some hearsay statements (see generally People v
Johnson, 79 AD3d 1264, 1266-1267, lv denied 16 NY3d 832), defendant
established through nonhearsay evidence that it did not use
plaintiff’s confidential information to solicit plaintiff’s customers
in violation of the nondisclosure agreement. In opposition to
defendant’s motion, plaintiff failed to establish the existence of a
material triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d
320, 324).

     We further conclude that defendant was entitled to summary
judgment dismissing plaintiff’s second cause of action alleging
defendant’s failure to negotiate in good faith. Although the
nondisclosure agreement provided that defendant “desire[d] to
participate in discussions regarding the purchase of” plaintiff’s
business, it is clear from the language of the agreement that neither
party was obligated to continue negotiating to the completion of such
a transaction (see Goodstein Constr. Corp. v City of New York, 80 NY2d
366, 373; see generally 180 Water St. Assoc. v Lehman Bros. Holdings,
7 AD3d 316, 317).

     With respect to plaintiff’s third cause of action, for fraud,
“[i]t is axiomatic that a cause of action for fraud does not arise
where . . . the fraud alleged relates to a breach of contract” (Egan v
New York Care Plus Ins. Co., 277 AD2d 652, 653; see Genovese v State
Farm Mut. Auto. Ins. Co., 106 AD3d 866, 867), and “[a] fraud claim is
not sufficiently stated where it alleges that a defendant did not
intend to perform a contract with a plaintiff when he made it” (Gordon
v Dino De Laurentiis Corp., 141 AD2d 435, 436). Here, plaintiff’s
cause of action for fraud is based upon allegations that defendant
made false representations that it was interested in purchasing
plaintiff’s business in order to gain plaintiff’s confidential
information. Thus, that cause of action fails because “the supporting
allegations do not concern representations which are collateral or
extraneous to the terms of the parties’ agreement” (Genovese, 106 AD3d
at 867 [internal quotation marks omitted]).

     Finally, we note that the parties’ agreement specifically
provides for an award of attorneys’ fees and expenses to the
prevailing party “in the event of litigation relating to [the]
[a]greement.” Plaintiff failed to preserve for our review his
contention that the court erred in awarding attorneys’ fees and
expenses to defendant without first conducting a hearing inasmuch as
plaintiff failed to request such a hearing (see Thompson v McQueeney,
56 AD3d 1254, 1259; see generally Ciesinski v Town of Aurora, 202 AD2d
984, 985).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
