| Glatt v Mariner Partners, Inc. |
| 2009 NY Slip Op 04346 [63 AD3d 428] |
| June 4, 2009 |
| Appellate Division, First Department |
| Alan D. Glatt, Appellant, v Mariner Partners, Inc., et al.,Respondents. |
—[*1] Kramer Levin Naftalis & Frankel LLP, New York (Robert N. Holtzman of counsel), forrespondents.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered January 7,2008, which granted defendants' motion to dismiss certain causes of action to the extent ofdismissing the causes of action for fraud and quantum meruit, and denied the motion withrespect to the cause of action for breach of contract, deemed to have dismissed so much of thesecond cause of action for breach of contract as is based on the "Responsibilities" section of thecontract, and, so considered, unanimously affirmed, without costs.
Plaintiff's cause of action for fraudulent inducement was properly dismissed. Not only isthere no allegation of a misrepresentation that is collateral to the contract (see Glanzer vKeilin & Bloom, 281 AD2d 371 [2001]; Orix Credit Alliance v Hable Co., 256AD2d 114 [1998]), but in addition there is no allegation of a knowing misrepresentation of apresent material fact with the intent to deceive (see Channel Master Corp. v Aluminium Ltd.Sales, 4 NY2d 403, 406-407 [1958]; Clearmont Prop., LLC v Eisner, 58 AD3d1052, 1056 [2009]). This fraud cause of action, based on the claim that defendants representedthat plaintiff would be able to transfer his Morgan Stanley clients and fully manage theiraccounts, actually hinges upon defendants' implicit representation that they possessed, orwould obtain, the broker dealer licensing necessary to permit plaintiff to transfer and manage thesecurities accounts of his existing clients at Morgan Stanley. There are no allegations in thecomplaint that the parties ever discussed defendant Mariner Partners' licensing in advance ofcontracting. The alleged explicit representations are insufficient to establish a knowingly falsestatement made with the intent to deceive, and the relied-upon implicit statement cannot serve asa misrepresentation upon which a claim of fraud may properly be based. Moreover, theallegations fail to support an assertion that plaintiff acted reasonably to the extent he relied ondefendants' implicit representations.
With respect to the cause of action for breach of contract, we agree with the motion court'sfinding that the contract is unambiguous, and that nothing in the "Responsibilities" sectionpertaining to plaintiff's Morgan Stanley clients may be read to require defendants to have thetype of broker-dealer licensing needed for plaintiff to fully service his Morgan Stanley [*2]clients.
Plaintiff's delay of nearly four years before seeking torescind the contract after learning in October 2003 that defendants would not seek the licensingneeded to service his Morgan Stanley clients constituted a waiver of his right to sue in quantummeruit (see R & A Food Servs. v Halmar Equities, 278 AD2d 398 [2000]).Concur—Gonzalez, P.J., Mazzarelli, Saxe, Moskowitz and Richter, JJ.