Decided October 19, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, RICHARD LEE PRICE, J.
Guy Miller Struve and Jim G. Kilpatric for American Telephone and Telegraph Company, Inc., appellant.
Harold S. Levy for New York Telephone Company, appellant.
William F. Sondericker for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (20 N.Y.CRR 500.2 [g]), order of the Appellate Division modified, with costs to defendants, by granting defendants' motion for summary judgment to the extent of dismissing the complaint insofar as it seeks damages for loss of profit, and as so modified, affirmed. Question certified answered in the negative.
Questions of fact exist as to whether defendants' representatives intended their statements to be opinions or positive statements of present intention, and as to whether plaintiff's claims are time barred.
The issue of whether a "special relationship" exists sufficient to make out a cause of action for negligent misrepresentation should also be left to the finder of fact ( White v Guarente, 43 N.Y.2d 356; International Prods. Co. v Erie R.R. Co., 244 N.Y. 331; Coolite Corp. v American Cyanamid Co., 52 A.D.2d 486; see, also, Restatement, Torts 2d, § 552).
As for damages, the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud ( Reno v Bull, 226 N.Y. 546).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER and MEYER concur; Judges GABRIELLI and FUCHSBERG taking no part.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order modified, with costs to defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.