Aigen v. Dimin

¶1In an action to recover damages for fraud, defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated November 3, 1980, which denied his motion for summary judgment dismissing the complaint. Order modified, on the law, by adding thereto, after the provision denying the motion, the following: “as to the second cause of action but the motion is granted as to the first cause of action.” As so modified, order affirmed, without costs or disbursements. It is apparent from plaintiffs’ answers to defendant’s interrogatories that the claim of damages in the first cause of action is based solely upon unrealized profits. The law is well settled that one cannot obtain unrealized profits in an action for fraud (Reno v Bull, 226 NY 546; Oxenfeldt v Yonofsky, 276 App Div 374; Ungewitter v Toch, 31 AD2d 583). Titone, J. P., Mangano, Weinstein and O’Connor, JJ., concur.