Belgo Asian Diamond Cy. v. European American Bank & Trust Co.

168 A.D.2d 345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1990
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered October 19, 1989, which dismissed the claims of plaintiffs during trial, unanimously affirmed, with costs.

The plaintiffs, various diamond dealers, were allegedly induced to offer credit in diamond sales to Berbro International, based upon defendant’s representations that Berbro’s account was "satisfactory”, i.e., recommended for normal business. As is here relevant, the court dismissed all fraud and negligent misrepresentation claims raised by the plaintiffs.

In accordance with customary procedures, the requests for information were made by inquiring banks, as agents for plaintiffs, without identifying either the person requesting the information or the purpose of the request. Under these circumstances, there could be no specific intent to defraud. (Black v Chittenden, 69 NY2d 665.) Furthermore, the alleged false misrepresentations of fact are more properly characterized as an expression of mere "opinion”, which is not actionable. (Supra.)

The negligent misrepresentation claims were also properly dismissed. As plaintiffs’ identity was not known by defendant, the relationship between the parties falls far short of the "functional equivalent of contractual privity” which is necessary to support such a claim. (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 419; Credit Alliance Corp. v Andersen & Co. 65 NY2d 536.) Concur—Ross, J. P., Carro, Asch, Wallach and Smith, JJ.