East 32nd Street Associates v. Jones Lang Wootton USA

191 A.D.2d 68, 599 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 5002
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 18, 1993
StatusPublished
Cited by10 cases

This text of 191 A.D.2d 68 (East 32nd Street Associates v. Jones Lang Wootton USA) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
East 32nd Street Associates v. Jones Lang Wootton USA, 191 A.D.2d 68, 599 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 5002 (N.Y. Ct. App. 1993).

Opinion

OPINION OF THE COURT

Ellerin, J.

The underlying action involved on this appeal stems from a [70]*70financially unsuccessful real estate venture undertaken by plaintiffs with the aid of their then investment advisor, property manager and leasing agent, defendant Jones Lang Wootton USA (JLW), and its employees, defendants Milde and Pariser. The property at issue, a commercial office building located at 145 East 32nd Street in Manhattan, was purchased by plaintiff East 32nd Street Associates in October 1985. Plaintiffs’ claim that they were induced to enter into this transaction by false information deliberately provided to them by defendants Milde and Pariser. Specifically, plaintiffs allege that defendants, with the intent to deceive and to induce plaintiffs to purchase the property, on or about April 25, 1985, transmitted to them, by mail, the "April Report,” which defendants knew contained material misrepresentations concerning the investment potential of the property, including projected cash flow and projected figures for the net rentable area. Additionally, plaintiffs allege that, on or about May 15, 1985, defendants transmitted to them, by mail, the "May Budget,” which defendants knew contained material misrepresentations concerning the projected construction budget for the renovation of the property. Plaintiffs further allege that, on August 14, 1985, with the intent to deceive, Milde sent them a letter in which he falsely stated that the purchase "provide[d] an excellent opportunity to achieve [plaintiff Webbjohn Street Corporation’s investment] objective.” Plaintiffs also allege that defendants transmitted numerous unspecified telexes falsely confirming that the representations and projections in the April Report and the May Budget were accurate.

In alleging Milde and Pariser’s purpose in making such false representations, plaintiffs claim that Milde and Pariser intended that, following the purchase of the property by plaintiffs, defendants, on behalf of themselves as well as other JLW partners and/or employees, would arrange for JLW to forego the brokerage and other fees owed by plaintiffs to JLW and, in exchange, defendants Milde and Pariser and the other participants in the scheme would receive an ownership share in the property and the allocation to them of virtually all of the initial tax benefits. Plaintiffs allege that, although this secondary deal was never actually consummated, it was the desire to have the opportunity to negotiate it which motivated Milde and Pariser to provide false information to encourage plaintiffs to make the purchase in the first instance.

As to defendant Milde, plaintiffs have also made allegations [71]*71involving a completely separate purchase of real property by an unrelated client of JLW, European Property Corporation Ltd. (EPC) involving unspecified letters, telexes and telephone conversations in which Milde allegedly intentionally assured EPC that the information contained in an "Acquisition Report” which had been provided to EPC was true while knowing that it was false. According to plaintiffs’ bill of particulars in the within action, these misrepresentations were made to EPC by Milde on behalf of JLW in order to benefit another client.

Based on these allegations, plaintiffs commenced the instant action alleging six causes of action, i.e., fraud against all defendants, violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) against defendants Milde and Pariser, negligent misrepresentation against all defendants, breach of contract against defendant JLW, and breach of fiduciary duty against all defendants. Defendants brought the motion which is the subject of this appeal seeking to dismiss the complaint for failure to state a cause of action and, in the alternative, seeking summary judgment. The IAS Court denied defendants’ motion in its entirety. It may be noted that discovery, which had not yet been completed, has, pursuant to court order, proceeded during the pendency of this appeal.

At the outset, we find that the IAS Court properly denied the motion to dismiss the first cause of action for intentional misrepresentation. While the law is well established that a cause of action for fraud cannot be based on speculative statements or expressions of hope concerning a future event (see, Crossland Sav. v SOI Dev. Corp., 166 AD2d 495; Derwald v L.J.N. Toys, 161 AD2d 223, 224), financial projections made with the knowledge that they were false and unreasonable may be the basis for an allegation of common-law fraud (CPC Intl. v McKesson Corp., 70 NY2d 268, 286). Plaintiffs here have alleged various misrepresentations by defendants which were designed to induce them to purchase the property and have presented sufficient evidence to present a question of fact as to whether those misrepresentations were made knowingly. Moreover, the fourth and sixth causes of action against defendant JLW were properly sustained as stating causes of action for breach of contract.

We find, however, that the third cause of action, which attempts to state a cause of action for negligent misrepresentation, fails to allege the violation of a legal duty independent of the contract and should therefore be dismissed (Clark-[72]*72Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389). Furthermore, we find that the fifth cause of action, against all three defendants for breach of fiduciary duty, should also be dismissed. Contrary to plaintiffs’ argument on appeal, no facts have been alleged indicating that the parties ever actually entered into a partnership relationship.

We turn, finally, to consideration of the second cause of action against defendants Milde and Pariser for treble damages based on violation of the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1962).

The RICO Act provides that "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or an unlawful debt.” (18 USC § 1962 [c].) In order to establish such a "pattern of racketeering activity,” it must be shown that defendants committed at least two predicate racketeering acts within a 10-year period (18 USC § 1961 [5]). Such acts are defined in 18 USC § 1961 (1).

The racketeering acts alleged by plaintiffs as having been committed by the within defendants consist of several instances of wire fraud (18 USC § 1343) and mail fraud (18 USC § 1341), both of which qualify as racketeering acts within the meaning of the RICO Act. Specifically, plaintiffs allege that defendants, with the intent to deceive and to induce plaintiffs to purchase the property, on or about April 25, 1985, transmitted to them, by mail, the April Report, which they knew contained material misrepresentations and, on or about May 15, 1985, transmitted to them, by mail, the May Budget, which they knew contained material misrepresentations and that, on August 14, 1985, with the intent to deceive, Milde sent a letter in which he stated that the purchase "provide[d] an excellent opportunity to achieve [plaintiff Webbjohn Street Corporation’s investment] objective.” It is also alleged that defendants transmitted numerous unspecified telexes confirming that the representations in the April Report and the May Budget were accurate and that the rental calculations were realistic.

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Bluebook (online)
191 A.D.2d 68, 599 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 5002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-32nd-street-associates-v-jones-lang-wootton-usa-nyappdiv-1993.