Daily News, L.P. v. Rockwell International Corp.

256 A.D.2d 13, 680 N.Y.S.2d 510, 1998 N.Y. App. Div. LEXIS 12785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 2, 1998, which granted defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff’s breach of contract claim seeking consequential damages was properly dismissed since the parties’ contract, which we deem to be enforceable in relevant part since there has been no showing of unconscionability, limits the remedies available thereunder and expressly excludes as a remedy the recovery of consequential damages (see, Mom’s Bagels v Sig Greenebaum Inc., 164 AD2d 820, 822, appeal dismissed 77 NY2d 902). Even if we were to find a question of fact as to whether the available remedy failed of its essential purpose within the meaning of the UCC 2-719 (2), we would find the contract language precludes an award of consequential damages (see, Scott v Palermo, 233 AD2d 869, 870). Plaintiffs fraud and misrepresentation claims were also properly dismissed since they are premised upon no more than an alleged conflict between oral representations and the subsequent written terms of the parties’ agreement. Such a conflict “negates a claim of a reasonable reliance upon the oral representation” (Stone v Schulz, 231 AD2d 707, 708). We have considered plaintiffs remaining arguments and find them to be unavailing. Concur— Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.