Opinion
April 28, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
We agree with the motion court's characterization of the statements complained of as amounting to essentially little more than mere puffery, opinions of value or future expectations that do not constitute actionable fraud ( see, Schonfeld v. Thompson, 243 A.D.2d 343; DH Cattle Holdings Co. v. Smith, 195 A.D.2d 202, 208; 88 Blue Corp. v. Staten Bldrs. Co., 176 A.D.2d 536, 537), or representations of fact that should have been subjected to further scrutiny by plaintiff and therefore could not have been relied upon justifiably. Nor do any of the alleged omissions support plaintiff's claim, inasmuch as there was no fiduciary relationship giving rise to a duty to speak ( see, Mobil Oil Corp. v. Joshi, 202 A.D.2d 318). We note in this latter connection that the requisite relationship between the parties must have existed prior to the transaction from which the alleged wrong emanated, and not as a result of it. Moreover, it cannot be said that there was a disparity of access to relevant information such as would impose upon defendant a duty to impart such information or do so correctly in the face of a partial, deceptive disclosure ( see, Junius Constr. Corp. v. Cohen, 257 N.Y. 393, 400; Banque Arabe et Internationale D'Investissement v. Maryland Natl. Bank, 57 F.3d 146, 155). In view of the inadequacy of the fraud allegations, and in the absence of allegations that defendants agreed to engage in a common scheme or plan to defraud plaintiff, the conspiracy and aiding and abetting claims are similarly deficient ( see, Truong v. ATT, 243 A.D.2d 278).
The motion court correctly determined that plaintiff's claim for diminution of the value of his stock holdings in defendant Artra was a derivative cause of action belonging to that corporation and not to plaintiff individually ( see, Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424; Abrams v. Donati, 66 N.Y.2d 951).
Finally, leave to replead was properly denied since the proposed pleading failed to remedy the defects of the dismissed complaint.
Concur — Milonas, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.