Summary
In Perlman, an action for economic damages based on fraud was, on the evidence presented, insufficient to establish the requisite degree of willful and wanton behavior to support punitive damages.
Summary of this case from Hopkins v. BoothOpinion
2674
December 24, 2002.
Order, Supreme Court, New York County (Louis York, J.), entered on or about May 15, 2002, which, to the extent appealed from, granted defendant's motion insofar as to dismiss, pursuant to CPLR 3211(a)(7), plaintiffs' first cause of action for negligent misrepresentation, third cause of action for negligence, and request for punitive damages in connection with their second cause of action for breach of fiduciary duty, unanimously affirmed, with costs.
Robert L. Rotmil, for plaintiffs-appellants.
Stephen G. Rinehart, for defendant-respondent.
Before: TOM, J.P., ANDRIAS, ROSENBERGER, FRIEDMAN, MARLOW, JJ.
The motion court properly dismissed plaintiffs' first cause of action for negligent misrepresentation, since the allegedly wrongful representation of defendant accounting firm to plaintiffs, its clients, i.e., that if plaintiffs put additional funds into their company, Whirlaway, factors would continue to extend Whirlaway credit, amounts to no more than a nonactionable "expression of future expectation" (Bower v. Atlis Sys., 182 A.D.2d 951, 953, lv denied 80 N.Y.2d 758; cf. Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403, 407).
Also proper was the motion court's dismissal of plaintiffs' negligence claim, since plaintiffs' allegations in support of the claim, namely, that if defendant had advised them to invest additional funds as side collateral with Rosenthal and Rosenthal, Inc., a company from which they sought financing, Whirlaway would have been protected from the claims of general unsecured creditors and Rosenthal would thereafter have refunded the investment in full, are grossly speculative (see Perkins v. Norwick, 257 A.D.2d 48; see also Sherwood Group v. Dornbush, Mensch, Mandelstam Silverman, 191 A.D.2d 292, 294).
Finally, the court's conclusion that punitive damages would not be warranted was correct since plaintiffs did not allege the requisite intentional or deliberate wrongdoing, aggravating or outrageous circumstances, fraudulent or evil motive, or conscious act in willful and wanton disregard of another's rights (cf. Don Buchwald Assocs. v. Rich, 281 A.D.2d 329, 330).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.