He had consigned the coins to Sotheby's pursuant to a written Consignment Agreement executed on October 8, 1997. The auction apparently was less successful financially than plaintiff had hoped it would be. The amended complaint is 28 pages long and asserts 15 claims, seeking unspecified monetary damages for alleged breach of fiduciary duty, failure to disclose, fraud, and breach of contract. Defendants now seek dismissal of the fourth and twelfth causes of action asserted in the amended complaint. In order to plead a cause of action for fraud, plaintiff must allege representation of a material existing fact, falsity, scienter, deception and injury.
Parol evidence is inadmissible to vary the express terms of a written agreement.
Parol evidence is inadmissible if a contract is clear on its face and sufficient alone to divine the intent of the parties. In the case at bar, plaintiff's contention would render a nullity the aforementioned provision in the Consignment Agreement that Sotheby's had the absolute right to consult with any expert of its choice. Since plaintiff expressly agreed that Sotheby's could consult with any expert, he could not justifiably have relied on an alleged oral representation by Song not to consult with Streiner. It is well-settled that a defense based upon documentary evidence can succeed if the documents submitted resolve all of the factual issues as a matter of law. To warrant dismissal, a defense grounded on documentary evidence must be a complete one, leaving no genuine triable issues of fact.