"Fraud and Breach of Contract: 'Duplicative'? Muddy Waters Revisited" By Kevin Schlosser

Here we go again. The intersection between the causes of action for fraud and breach of contract was traversed again in the recent decision of the Appellate Division, First Department, in New York City Waterfront Dev. Fund II, LLC v Pier A Battery Park Assocs., LLC, 2022 NY Slip Op 04127 (1^st Dep’t Decided June 28, 2022). And the inconsistencies in this area of law continue to abound.

“Duplicative” Claims or Simply Non-Existent Claims?

I have commented on the ill-advised and confusing use of the term “duplicative” when it comes to adjudging the legal viability of different causes of action. See my post: “First Department Sustains Ostensible “Duplicative” Fraud/Contract Claims, Allowing Pleading in the Alternative.” Since parties in New York have the right to plead “in the alternative,” technically, a cause of action should not be dismissed simply because it may be deemed “duplicative” of another claim. If two independent causes of action arise from the same facts and circumstances, both claims should be permitted to be pursued in litigation, although, of course, the plaintiff cannot recover double or “duplicative” damages for the same underlying wrong.

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