On November 14, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Joseph v. Joseph, 2024 NY Slip Op. 34030(U), holding that a fraud claim cannot be based on the failure to keep promises of future performance, explaining:
To successfully plead fraud the pleadings must contain allegations of a representation of a material fact, falsity, scienter, reliance and injury. Further, the allegations must be stated in detail and must
include dates, details and items to the extent relevant. Moreover, it is well settled that although fraud may exist in the inducement of a contract, where, as here, it is based solely on the failure to perform a promised future act, plaintiff’s remedy lies in an action on the contract. Therefore, to assert a misrepresentation, the misrepresentation must concern. a present fact, not a future promise.The counterclaim in this case does not allege any misrepresentation of any present fact. Rather, it solely concerns itself with promises made to the plaintiff that were not kept. The counterclaim alleges that the plaintiff promised he would manage and care for the Property and failed to do so. However, that failure, even if true; is simply not fraud. Therefore, the motion seeking summary judgement on the first counterclaim is denied.
(Internal quotations and citations omitted).