Opinion
February 1, 1994
Appeal from the Supreme Court, New York County (Carol Huff, J.).
The cause of action for negligent misrepresentation was properly dismissed on the ground that a "special relationship" giving rise to a duty to impart correct information could not be discerned from the arm's length dealings between the parties alleged in the complaint (see, Delcor Labs. v. Cosmair, Inc., 169 A.D.2d 639, 639-640, lv dismissed 78 N.Y.2d 952). Coolite Corp. v. American Cyanamid Co. ( 52 A.D.2d 486), upon which plaintiffs rely, does not suggest a different result, since there the relationship between the parties was already in existence when the alleged negligent misrepresentations were made (see, Pappas v. Harrow Stores, 140 A.D.2d 501, 505). As for the cause of action for fraud, while it may allege the partial, and therefore misleading, disclosure of an existing fact (see, Stambovsky v Ackley, 169 A.D.2d 254, 257-258), rather than mere nonactionable expressions as to future conduct as defendant maintains, this alone is not sufficient. Under either theory of pecuniary loss discernible from plaintiffs' papers, whether they would have not engaged defendant's restaurant for their wedding party had they known of the true state of affairs, or whether they would have chosen a smaller less expensive space on defendant's premises, their damages under the fraud cause of action are limited to out-of-pocket expenses that do not exceed the recovery sought under the contract cause of action (see, Orbit Holding Corp. v Anthony Hotel Corp., 121 A.D.2d 311, 315) and are therefore duplicative (see, Tierney v. Capricorn Investors, 189 A.D.2d 629, 631-632, lv denied 81 N.Y.2d 710).
Concur — Rosenberger, J.P., Ellerin, Asch, Nardelli and Williams, JJ.