Germain v. Staten Island Boat Sales, Inc. , 669 N.Y.S.2d 893 ( 1998 )

—In an action to recover damages for breach of contract, fraud, and negligence, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Coppola, J.), entered March 21, 1997, as (1) denied his motion for summary judgment on the issue of liability, (2) granted that branch of the defendant’s cross motion which was to dismiss his claim for punitive damages, and (3), upon searching the record pursuant to CPLR 3212 (b), dismissed the cause of action sounding in fraud.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly dismissed the cause of action sounding in fraud, since the allegations of fraud clearly relate to the alleged breach of contract (Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643; Weisberger v Goldstein, 242 AD2d 622; Hadari v Leshchinsky, 242 AD2d 557). Further, contrary to the plaintiffs assertion, the court did not dismiss his cause of action sounding in negligence. However, the Supreme Court properly dismissed the claim for punitive damages (see, Zabas v Kard, 194 AD2d 784). Finally, the Supreme Court correctly denied that branch of the plaintiffs motion which was for summary judgment on the cause of action alleging breach of contract, as there is a question of fact as to whether the defendant materially breached the contract (see, CPLR 3212 [b]; Productive Recycling v Town of Smithtown, 222 AD2d 663).

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.