Summary
dismissing claim of fraudulent misrepresentation since it was predicated upon an expression of future expectations rather than existing fact
Summary of this case from Jacob v. Kimberly-Clark Corp.Opinion
October 19, 1987
Appeal from the Supreme Court, Nassau County (Burstein, J.).
Ordered that the judgment is affirmed, with costs.
We find, in accordance with the trial court's determination, that the Statute of Frauds (see, UCC 2-201) bars the plaintiff's first cause of action to recover damages for breach of an alleged oral agreement approving the plaintiff as a Subaru dealer (see, Crabtree Automotive v. BMW of N. Am., 105 A.D.2d 825; Swerdloff v. Mobil Oil Corp., 74 A.D.2d 258, lv denied 50 N.Y.2d 803, 913). The agreement necessarily involved the purchase of goods (to wit, Subaru automobiles) valued at more than $500.
The circumstances of this case are not such as to render it unconscionable to refuse to enforce the promise upon which the plaintiff allegedly relied, since the mere failure to obtain an uncertain prospective benefit does not rise to a sufficient level of unconscionability to warrant the application of the doctrine of promissory estoppel (see, American Bartenders School v. 105 Madison Co., 59 N.Y.2d 716; Philo Smith Co. v. USLIFE Corp., 554 F.2d 34).
Since we affirm the dismissal of the breach of contract cause of action on Statute of Frauds grounds, we do not reach the alternative grounds for dismissal raised by the defendants.
We further find that the plaintiff has failed to make out a prima facie case to recover damages for negligent misrepresentation (see, International Prods. Co. v. Erie R.R. Co., 244 N.Y. 331, cert denied 275 U.S. 527; PJI 2:230). Moreover, the cause of action sounding in fraudulent misrepresentation was also properly dismissed, since the promises relied on by the plaintiff were expressions of future expectations rather than statements of existing fact (see, Channel Master Corp. v Aluminum Ltd. Sales, 4 N.Y.2d 403; Margrove Inc. v. Lincoln First Bank, 54 A.D.2d 1105, appeal dismissed 40 N.Y.2d 1092). Nor does the record indicate that the defendants intended to defraud the plaintiff (see, Brown v. Lockwood, 76 A.D.2d 721; Manchel v Kasdan, 286 App. Div. 483, affd 1 N.Y.2d 734).
The previous denial of the defendants' motions for summary judgment did not require, as a consequence, that the defendants' motion for judgment as a matter of law be denied at the trial (see, Zook v. Hartford Acc. Indem. Co., 64 A.D.2d 701).
We find the plaintiff's remaining contentions to be without merit. Thompson, J.P., Bracken, Niehoff and Harwood, JJ., concur.