Summary
applying the above-stated rule to the purchase of chattels
Summary of this case from Simms v. BiondoOpinion
December 10, 1987
Appeal from the Supreme Court, St. Lawrence County (Viscardi, J.).
When this matter was before this court on a prior occasion, we affirmed the dismissal of an action for breach of contract, the second of the three causes of action in the amended complaint, leaving a cause of action for fraud and, in the alternative, rescission, following the sale by defendants to plaintiffs of a quantity of jade jewelry ( 108 A.D.2d 978). We now affirm the dismissal of those two surviving causes of action.
Plaintiffs were experienced art collectors familiar with the jade market who initiated the negotiations with defendants which were consummated after extensive negotiations between the parties, at arm's length. At the time of the sale, plaintiffs were given the opportunity to have the jade appraised by their own appraiser, in accordance with defendants' long-standing policy. Plaintiffs declined the offer. The record does not establish elements necessary to sustain a cause of action for fraud, and the bare allegation thereof in a complaint is clearly insufficient (see, Brown v Lockwood, 76 A.D.2d 721, 732; Biggar v Buteau, 51 A.D.2d 601). Furthermore, the affidavits and testimony of expert appraisers attest to the fact that the value of jade fluctuates with the condition of the world market and depends upon the preferences of the individual collector. As such, jade is capable only of subjective opinion as to value and cannot receive objective valuation. Under the circumstances, Supreme Court was correct in applying the general rule that representations as to the value of property are considered matters of opinion and do not provide the basis for a cause of action in fraud (see, Van Slochem v Villard, 207 N.Y. 587, 590; Irving Trust Co. v La Pilar Realty, 56 A.D.2d 532; 60 N.Y. Jur 2d, Fraud Deceit, § 74, at 542).
The cause of action for rescission must fail because plaintiffs admit that in the fall of 1983 all of the jade was sold except one necklace, which was damaged. Since the parties by their own actions accepted the benefits of the sale, they may not now disaffirm that transaction (see, Clearview Concrete Prods. v S. Charles Gherardi, Inc., 88 A.D.2d 461).
Finally, we agree that there is no cause of action stated under General Business Law § 239-c in the amended complaint and, thus, any cause of action under that section contained in the original complaint cannot be considered (see, Hawley v Travelers Indem. Co., 90 A.D.2d 684). Additionally, an examination of the statute discloses that "jade" is not an item to which the statute might apply. Accordingly, the amended complaint, in its entirety, was properly dismissed and the question of the propriety of quashing defendants' subpoena duces tecum is academic.
Order affirmed, with costs. Mahoney, P.J., Kane, Casey and Weiss, JJ., concur; Harvey, J., not taking part.