                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 10, 2016                    521166
________________________________

NORTHEAST UNITED CORPORATION,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JAMES LEWIS et al.,
                    Respondents.
________________________________


Calendar Date:   January 5, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      McDonough & Artz, PC, Binghamton (Philip J. Artz of
counsel), for appellant.

      Pope, Schrader & Pope, LLP, Binghamton (Alan J. Pope of
counsel), for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Reynolds
Fitzgerald, J.), entered May 18, 2015 in Broome County, which,
among other things, granted a motion by defendants James Lewis
and Robert Hall to dismiss the complaint against them.

      Plaintiff, a general contractor, and defendant James L.
Lewis, Inc. (hereinafter Lewis, Inc.), a plumbing subcontractor,
contracted for Lewis, Inc. to provide and install various
apparatuses as part of a construction project. Thereafter,
plaintiff commenced this action for breach of contract against
Lewis, Inc. and fraud against defendants James Lewis and Robert
Hall, the respective president and vice-president of Lewis, Inc.,
alleging damages based on the further allegations that Lewis,
Inc. had used improper materials for the work. That same month,
                              -2-                521166

plaintiff moved by order to show cause for an order of attachment
against defendants, seeking to attach the proceeds of an imminent
arbitration between plaintiff and Lewis, Inc. Lewis and Hall
moved to dismiss the complaint against them. Supreme Court
granted Lewis and Hall's motion to dismiss the complaint against
them and denied plaintiff's application for an order of
attachment. Plaintiff now appeals, and we affirm.

      A cause of action for fraud does not exist where the
alleged fraudulent act is premised upon a breach of a contractual
obligation (see New York State Workers' Compensation Bd. v Marsh
U.S.A., Inc., 126 AD3d 1085, 1088 [2015]; Salvador v Uncle Sam's
Auctions & Realty, 307 AD2d 609, 611 [2003], lv dismissed 1 NY3d
566 [2003]). Plaintiff contends that it alleged a fraud in the
inducement cause of action that would apply in the event that the
contract contradicted the promises that Hall and Lewis had made
prior to the contract's execution. Granting plaintiff that
premise, we nonetheless reject its argument as a matter of law.

      According to plaintiff's allegations, prior to entering
into the contract, both Hall and Lewis assured plaintiff that
they would not substitute materials without plaintiff's
permission.1 The contract reveals that Lewis, Inc. agreed to
perform the work "in strict accordance" with the contractual
specifications, which specifications allowed for substitutions of
materials in certain instances without plaintiff's permission.
Even accepting plaintiff's allegations as true, a sophisticated
business entity cannot justifiably rely on oral representations
when it thereafter enters into a contract containing terms that
directly contradict those oral representations (see Bank of Am.,
N.A. v Lang Indus., Inc., 127 AD3d 1457, 1459 [2015]; Sorenson v
Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12
NY3d 748 [2009]; West v Szwalla, 234 AD2d 638, 638 [1996];
Dunkin' Donuts of Am. v Liberatore, 138 AD2d 559, 560 [1988]).
Accordingly, plaintiff's fraud cause of action is subject to


    1
        Although plaintiff contends that Lewis made his
representation after plaintiff had already signed the contract,
plaintiff acknowledges that the contract was still in its control
and that it had not yet delivered the contract to Lewis, Inc.
                              -3-                521166

dismissal, either as duplicative of the contract cause of action
or, in the alternative, based on plaintiff's own allegations that
it relied on oral representations that were contradicted by the
terms of the contract that it thereafter entered into.

      Further, Supreme Court did not abuse its discretion in
denying plaintiff's motion for attachment. As relevant here, the
remedy of attachment is available where a plaintiff "has demanded
and would be entitled . . . to a money judgment against one or
more defendants, when . . . the defendant, with intent to defraud
his [or her] creditors or frustrate the enforcement of a judgment
that might be rendered in [the] plaintiff's favor, has assigned,
disposed of, encumbered or secreted property, or removed it from
the state or is about to do any of these acts" (CPLR 6201 [3]).
Attachment is a drastic remedy, and "CPLR 6201 is strictly
construed in favor of those against whom it may be employed"
(Grafstein v Schwartz, 100 AD3d 699, 699 [2012]; see Glazer &
Gottlieb v Nachman, 234 AD2d 105, 105 [1996]). Plaintiff put
forward proof that the offices of Lewis, Inc. appeared to be for
sale, that Lewis, Inc. did not have any visible assets or
vehicles at those offices and that Lewis resided in Texas. A
contractor who worked in the same area as Lewis, Inc. averred
that Lewis, Inc. had ceased operation. Hall provided contrary
evidence, averring that Lewis, Inc. continued to operate. Even
assuming that plaintiff's proof was sufficient to establish that
Lewis, Inc. was beginning efforts to wind down as a corporate
entity, such proof, on its own, does not give rise to the
inference that these efforts were for the purpose of secreting
assets in order to frustrate a potential judgment. Accordingly,
Supreme Court did not abuse its discretion in finding that
plaintiff failed to satisfy the exacting standard for attachment
pursuant to CPLR 6201 (3) (see Societe Generale Alsacienne De
Banque, Zurich v Flemingdon Dev. Corp., 118 AD2d at 773; Computer
Strategies v Commodore Bus. Machs., 105 AD2d 167, 167 [1984]).
Plaintiff's remaining arguments are unpreserved and/or without
merit.

     Egan Jr., Lynch and Clark, JJ., concur.
                        -4-                  521166

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
