Lustig v. Anywear, Inc. , 535 N.Y.S.2d 694 ( 1988 )

Order, Supreme Court, New York County (Walter M. Schackman, J.), entered December 11, 1987, which, inter alla, denied defendant’s motion to dismiss on the ground of release, unanimously modified, on the law to dismiss the second cause of action and otherwise affirmed, without costs and with leave to replead within 20 days after the date of this court’s order.

In his first cause of action, plaintiff alleges that the defendant breached a June 5, 1984 agreement to pay sales commissions. In the second cause of action plaintiff alleges fraud in that defendant had no intention to perform the June 5, 1984 agreement. "A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract” (Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607 [1st Dept 1985], appeal dismissed 65 NY2d 637 [1985]). We are not persuaded, however, that plaintiff cannot plead such a cause of action and, accordingly, grant leave to replead. Concur— Kupferman, J. P., Sullivan, Ross, Carro and Smith, JJ.