| Ideal Steel Supply Corp. v Anza |
| 2009 NY Slip Op 05090 [63 AD3d 884] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Ideal Steel Supply Corp., Appellant, v Joseph V. Anza etal., Respondents. |
—[*1] Fox Horan & Camerini, LLP, New York, N.Y. (V. David Rivkin and William M. Brodsky ofcounsel), for respondent Joseph V. Anza. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Peter J. Larkin, ThomasR. Manisero, and Jeffrey L. Wilson of counsel), for respondent Berdon, LLP.
In an action, inter alia, to recover damages for fraud and negligent misrepresentation, theplaintiff appeals, as limited by its brief, from so much of two orders of the Supreme Court,Queens County (Grays, J.), each dated January 16, 2008, as granted those branches of thedefendants' separate motions which were pursuant to CPLR 3211 (a) (7) to dismiss the fourthand fifth causes of action of the amended complaint insofar as asserted against each of them.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The Supreme Court properly granted those branches of the defendants' separate motionswhich were to dismiss the fourth cause of action of the amended complaint alleging fraud. Theplaintiff failed to adequately allege justifiable reliance and damages resulting therefrom (seeOzelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877 [2006]; Giurdanella vGiurdanella, 226 AD2d 342 [1996]). To plead reliance, the plaintiff was required to allegethat it was induced to act or refrain from acting to its detriment by virtue of the falserepresentation (see Shea v Hambros PLC, 244 AD2d 39, 46 [1998]). While the plaintiffasserts that it was only required to retain an expert to analyze certain financial documentsprovided by the defendants because those documents contained false representations, theplaintiff retained its expert to analyze those documents prior to their receipt. Accordingly, theplaintiff failed to allege that its expert expenditure resulted from the false representation andwould not otherwise have been incurred (see Clearview Concrete Prods. Corp. v S. CharlesGherardi, Inc., 88 AD2d 461, 468 [1982]; cf. 164 Mulberry St. Corp. v Columbia Univ.,4 AD3d 49 [2004]).[*2]
The Supreme Court properly granted those branches ofthe defendants' separate motions which were to dismiss the fifth cause of action of the amendedcomplaint alleging negligent misrepresentation. The plaintiff failed to allege reasonable relianceand the existence of privity or a relationship approaching privity between it and either of thedefendants (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007];Parrott v Coopers & Lybrand, 95 NY2d 479, 484 [2000]). There are no allegations ofany conduct by the defendants linking them to the plaintiff and evincing their understanding ofany reliance on the part of the plaintiff (see Credit Alliance Corp. v Arthur Andersen & Co.,65 NY2d 536, 551 [1985]; Securities Inv. Protection Corp. v BDO Seidman, 95NY2d 702, 711 [2001]; cf. Kimmell v Schaefer, 89 NY2d 257, 261 [1996]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Belen and Hall,JJ., concur.