ESE Funding SPC Ltd. v Morgan Stanley

2009 NY Slip Op 09718 [68 AD3d 676]

December 29, 2009

Appellate Division, First Department

As corrected through Wednesday, February 10, 2010

ESE Funding SPC Ltd., Appellant, v Morgan Stanley etal., Respondents.

—[*1]Scarola Ellis LLP, New York (Richard J.J. Scarola of counsel), for appellant.

Venable LLP, New York (Edward P. Boyle of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered January 29,2009, which, to the extent appealed from, granted that portion of defendants' motion to dismissthe 9th, 10th and 11th causes of action, alleging negligent misrepresentation, unanimouslyaffirmed, with costs.

Plaintiff negotiated an arm's length commercial contract with defendant Morgan StanleyAltabridge to purchase defendants' financial risk associated with a third-party securitytransaction. Plaintiff has made no showing that any of these defendants had a "specialrelationship" with plaintiff (cf. Kimmell v Schaefer, 89 NY2d 257 [1996]).

We have reviewed plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.