| Koch v Acker, Merrall & Condit Co. |
| 2010 NY Slip Op 04515 [73 AD3d 661] |
| May 27, 2010 |
| Appellate Division, First Department |
| William I. Koch, Respondent, v Acker, Merrall & ConditCompany, Appellant. |
—[*1] Irell & Manella LLP, Los Angeles, California (Gregory R. Smith, of the California bar,admitted pro hac vice, of counsel), for respondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered April 9, 2009,which, in an action arising out of plaintiff's purchase of allegedly counterfeit wines fromdefendant wine auctioneer, insofar as appealed from as limited by the briefs, denied defendant'smotion to dismiss plaintiff's causes of action under General Business Law §§ 349and 350, unanimously reversed, on the law, with costs, the motion granted, and such causes ofaction dismissed.
The "Conditions of Sale/Purchaser's Agreement" included in each of defendant's auctioncatalogues contains an "as is" provision alerting prospective purchasers that defendant "makesno express or implied representation, warranty, or guarantee regarding the origin, physicalcondition, quality, rarity, authenticity, value or estimated value of [the wine]," that anystatements made by defendant were "opinion only, and shall not be relied upon by any bidder,"and that "[p]rospective bidders must satisfy themselves by inspection or other means as to allconsiderations pertinent to any decision to place any bid." A reasonable consumer, alerted bythese disclaimers, would not have relied, and thus would not have been misled, by defendant'salleged misrepresentations concerning the vintage and provenance of the wine it sells.Accordingly, plaintiff's claims under General Business Law §§ 349 and 350 lackmerit (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 [2002]).Concur—Tom, J.P., Friedman, Nardelli, Acosta and Abdus-Salaam, JJ.