1411 Broadway Restaurant, Inc. v. Keystone Associates

237 A.D.2d 190, 655 N.Y.S.2d 367, 1997 N.Y. App. Div. LEXIS 2708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Schackman, J.), entered April 16, 1996, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiffs cause of action seeking to rescind the release it gave in connection with the 1411 property as fraudulently induced by defendants’ misrepresentation that they would give plaintiff a favorable lease at the Grace Building property is unsupported by allegations permitting an inference that defendants never intended to give plaintiff such a lease (see, Stuart Lipsky, P. C. v Price, 215 AD2d 102). Indeed, the documentary evidence, which shows that a proposed lease was drafted, negotiations were underway, and schematic plans were reviewed, undermines any such claim. The documentary evidence also undermines any claim of reliance on the alleged misrepresentation, the lease proposal expressly stating that it did not constitute an offer (see, Tribune Print. Co. v 263 Ninth Ave. Realty, 57 NY2d 1038). Nor can the alleged promise to give a lease be deemed a part of the consideration for the release (see, L & K Holding Corp. v Tropical Aquarium, 192 AD2d 643, 644-645).

Since the remaining causes of action contained in the complaint are wholly dependent upon the release rescission claim, the complaint as a whole was properly dismissed. In view of the foregoing, it is unnecessary to consider defendants’ other grounds for the same relief. Concur—Rosenberger, J. P., Wallach, Williams and Andrias, JJ.