| Facie Libre Assoc. I, LLC v SecondMarket Holdings,Inc. |
| 2013 NY Slip Op 01200 [103 AD3d 565] |
| February 26, 2013 |
| Appellate Division, First Department |
| Facie Libre Associates I, LLC, et al.,Respondents, v SecondMarket Holdings, Inc.,Appellant. |
—[*1] Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York (Dominic J. Piccaof counsel), for respondents.
Order, Supreme Court, New York County, (Shirley Werner Kornreich, J.), enteredAugust 10, 2012, which, to the extent appealed from, denied defendant's motion todismiss the cause of action alleging intentional misrepresentation, unanimously reversed,on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment in favor of defendant dismissing the complaint.
Dismissal of the intentional misrepresentation claim is warranted because plaintiffsfailed to allege any out-of-pocket loss as a result of the subject transaction, as opposed tolost profits (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]).Although defendant raised this argument for the first time on appeal, "[s]o long as theissue is determinative and the record on appeal is sufficient to permit our review, we mayconsider a new legal argument raised for the first time in this Court" (Vanship Holdings Ltd. v EnergyInfrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]).Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ. [PriorCase History: 36 Misc 3d 1229(A), 2012 NY Slip Op 51545(U).]