| Princes Point, LLC v AKRF Eng'g, P.C. |
| 2012 NY Slip Op 02954 [94 AD3d 588] |
| April 19, 2012 |
| Appellate Division, First Department |
| Princes Point, LLC, Appellant, v AKRF Engineering, P.C.,et al., Respondents. |
—[*1] Seyfarth Shaw LLP, New York (Donald R. Dunn, Jr. of counsel), for AKRF Engineering,P.C., respondent. Herrick, Feinstein LLP, New York (Scott E. Mollen of counsel), for Muss DevelopmentL.L.C., Allied Princes Bay Co., Allied Princes Bay Co. #2, L.P. and Joshua L. Muss,respondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about March24, 2011, which denied plaintiff's motion for leave to amend its complaint to add causes of actionfor fraud, promissory estoppel and prima facie tort, unanimously affirmed, without costs.
In this action arising from a real estate contract pursuant to which plaintiff agreed to purchasefrom defendants Allied Princes Bay Co. and Allied Princes Bay Co. #2, L.P. (Allied) a 23-acreparcel of waterfront property that had previously been listed by the Department of EnvironmentalConservation as a hazardous waste site, a disagreement occurred over the propriety of theshoreline revetment seawall, an issue which delayed obtaining various development approvalsand forestalled the contract's closing. Plaintiff commenced the instant action asserting causes ofaction for fraud against defendant AKRF Engineering, P.C., the company that constructed therevetment, negligent misrepresentation against Allied and AKRF, and specific performance ofthe June 2004 contract, as well as fraud in the inducement and rescission of a March 2006amendment to the contract, against Allied.
Plaintiff's motion to amend the complaint to add additional causes of action was properlydenied. Plaintiff's claims for promissory estoppel and fraud relating to the June 2004 contract failsince, pursuant to the contract, the property was being purchased "AS IS . . . ANDWITH ALL FAULTS," and plaintiff was relying solely on its own inspections of the property.Thus, plaintiff accepted all defects in the premises and was not relying on any assurances madeby defendants as to the condition of the property (see Barnes v Gould, 83 AD2d 900[1981], affd 55 NY2d 943 [1982]). In addition, the proposed promissory estoppel claimis deficient because the contract included a clause stating that it represented the entireunderstanding between the parties (seeFariello v Checkmate Holdings, LLC, 82 AD3d 437, 438 [2011]).
Furthermore, the new damages sought, consequential and punitive, are unavailable toplaintiff on the claims asserted. Damages for fraud are to compensate plaintiffs for what they[*2]lost, " 'not to compensate them for what they might havegained' " (Starr Found. v American Intl.Group, Inc., 76 AD3d 25, 27 [2010], quoting Lama Holding Co. v SmithBarney, 88 NY2d 413, 421 [1996]), and punitive damages are not warranted since plaintiffhas not alleged wrongdoing evincing a high degree of moral turpitude that demonstrates suchwanton dishonesty as to imply a criminal indifference to civil obligations (Ross v Louise Wise Servs., Inc., 8NY3d 478 [2007]).
Plaintiff failed to plead facts that are sufficient to support a cause of action for prima facietort because the allegations do not establish that defendants' purportedly tortious conduct wasmotivated by an otherwise lawful act performed with the intent to injure or with a "disinterestedmalevolence" (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Kleinerman v 245 E. 87 Tenants Corp.,74 AD3d 448 [2010]). Plaintiff's allegation of malevolence is contrary to its allegationconcerning defendants' alleged profit motives (see Meridian Capital Partners, Inc. v Fifth Ave. 58/59 Acquisition Co.LP, 60 AD3d 434 [2009]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Moskowitz, Richter, Abdus-Salaam and Román, JJ.
The decision and order of this Court entered herein on December 8, 2011 (90 AD3d 459[2011]) is hereby recalled and vacated (see 2012 NY Slip Op 70699[U] [2012] [decidedsimultaneously herewith]).