Summary
holding that agreement did not constitute a "binding preliminary agreement to negotiate in good faith" a mortgage contract
Summary of this case from Brown v. CaraOpinion
1493-1494
June 27, 2002.
Judgment, Supreme Court, New York County (Herman Cahn, J.), entered April 27, 2001, dismissing the amended complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered April 18, 2001, which granted defendants' motion for summary judgment, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.
MARK L. KALISH, for plaintiff-appellant.
PATRICK J. BOYLE, for defendants-respondents.
Before: Williams, P.J., Nardelli, Saxe, Sullivan, Friedman, JJ.
We agree with the motion court that there was no binding preliminary agreement to negotiate in good faith plaintiff's application for a commercial mortgage in view of the disclaimers in the application and the sophistication and experience of plaintiff's principals (see generally,Adjustrite Sys., Inc. v. Gab Bus. Svcs., 145 F.3d 543, 549). While it is therefore unnecessary to determine whether the claimed agreement was subject to the Statute of Frauds, we note that, assuming arguendo that it was, plaintiff's claimed additional financing and other costs do not constitute an unconscionable injury warranting the application of promissory estoppel (see, e.g., Melwani v. Jain, 281 A.D.2d 276; compare,Fleet Bank v. Pine Knoll Corp., 290 A.D.2d 792).
The fraud and negligent misrepresentation causes of action were properly dismissed in the absence of reasonable reliance upon the claimed representations, as well as for the additional reason that, under the instant circumstances, such claims were merely duplicative of the insufficient breach of contract cause of action (see, Coppola v. Applied Electric Corp., 288 A.D.2d 41, 42). Moreover, as this Court has repeatedly held, an arm's length borrower-lender relationship is not of a confidential or fiduciary nature and therefore does not support a cause of action for negligent misrepresentation (FAB Indus. v. BNY Fin. Corp., 252 A.D.2d 367; Heller Fin. v. Apple Tree Realty Assocs., 238 A.D.2d 198, 199, appeal dismissed 90 N.Y.2d 889; Banque Nationale de Paris v. 1567 Broadway Owner. Assocs., 214 A.D.2d 359, 360; see also, Fleet Bank v. Pine Knoll Corp., supra; Wiener v. Lazard Freres Co., 241 A.D.2d 114, 122).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.