| Capricorn Invs. III, L.P. v CoolBrands Intl., Inc. |
| 2009 NY Slip Op 06777 [66 AD3d 409] |
| October 1, 2009 |
| Appellate Division, First Department |
| Capricorn Investors III, L.P., Appellant, v CoolBrandsInternational, Inc., et al., Respondents, et al., Defendants. |
—[*1] Steptoe & Johnson, LLP, New York (Michael C. Miller of counsel), forrespondents.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 21, 2008,which, to the extent appealed from, granted defendants' motion to dismiss the claims allegingfraudulent inducement, negligent misrepresentation and promissory estoppel, unanimouslyaffirmed, with costs.
In support of its claim of fraudulent inducement, plaintiff alleges that defendants did notkeep their oral promises to consolidate the operations of their Arkansas plant and plaintiff'sTexas plant and that defendants never intended to keep those promises. However, as plaintiffalleges no facts that would show that defendants never intended to keep their promises, the courtcorrectly dismissed the claim (see Abelman v Shoratlantic Dev. Co., 153 AD2d 821, 822[1989]). Further, neither the limited partnership agreement nor the related documents provide forthe plant consolidation, and all the documents disclaim reliance on oral representations (seeCitibank v Plapinger, 66 NY2d 90, 95 [1985]; Emfore Corp. v Blimpie Assoc., Ltd., 51 AD3d 434 [2008]).
The court correctly dismissed the claim of negligent misrepresentation because it ispredicated upon promises of future conduct, rather than statements as to "existing material fact"(Margrove Inc. v Lincoln First Bank of Rochester, 54 AD2d 1105, 1107 [1976],appeal dismissed 40 NY2d 1092 [1977]). The promissory estoppel claim was properlydismissed because it was flatly contradicted by the parties' written agreement which covered thesame subject matter and expressly superseded all other prior agreements and understandings,written and oral (cf. Prestige Foods v Whale Sec. Co., 243 AD2d 281, 281-282[1997]).[*2]
We have considered plaintiff's remaining arguments andfind them unavailing. Concur—Tom, J.P., Andrias, DeGrasse and Freedman, JJ.