Opinion
438
March 7, 2002.
Order, Supreme Court, New York County (Charles Ramos, J.), entered September 25, 2001, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint, and granted defendant's motion for sanctions pursuant to 22 NYCRR § 130-1.1 to the extent of directing a Special Referee to hear and report as to the costs incurred by defendant in the form of attorney's fees by reason of plaintiff's filing of a frivolous action and engaging in frivolous conduct, unanimously affirmed, with costs.
Carobert W. Cinque, plaintiff-appellant, pro se.
Jeffrey D. Buss for defendant-respondent.
Before: Williams, J.P., Mazzarelli, Andrias, Lerner, Marlow, JJ.
Plaintiff, in response to defendant's prima facie showing of entitlement to judgment as a matter of law, failed to offer proof in evidentiary form that defendant architect owed him a fiduciary duty separate from and extraneous to the parties' contractually defined relationship (see, Syllman v. Calleo Dev. Corp., 290 A.D.2d 209, 2002 N.Y. App. Div. LEXIS 202), or even that there was a fiduciary relationship (see, Farash Constr. Corp. v. Gregory D. Ferentino Assocs., 167 A.D.2d 877, 878, lv denied 77 N.Y.2d 807). Similarly, plaintiff, in support of his cause for fraud, presented no evidence that defendant made misrepresentations of fact, as opposed to promises of future intent to perform (cf., Bd. of Managers of 411 E. 53rd St. Condominium v. Dylan Carpet, 182 A.D.2d 551, 552), that were extraneous to and separate from promises set forth in the contract (see, Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 42 732 N.Y.S.2d 402, 403). No question of fact is raised as to any of plaintiff's remaining causes of action. The motion court's finding that defendant was entitled to recover reasonable attorney's fees pursuant to Rule 130-1.1 for plaintiff's frivolous conduct in commencing and prosecuting this baseless action was proper.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.