Facie Libre Associates I, LLC v. SecondMarket Holdings, Inc.

103 A.D.3d 565, 961 N.Y.S.2d 44

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County, (Shirley Werner Kornreich, J), entered August 10, 2012, which, to the extent appealed from, denied defendant’s motion to dismiss the cause of action alleging intentional misrepresentation, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Dismissal of the intentional misrepresentation claim is warranted because plaintiffs failed to allege any out-of-pocket loss as a result of the subject transaction, as opposed to lost profits (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). Although defendant raised this argument for the first time on appeal, “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review, we may consider a new legal argument raised for the first time in this Court” (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]). Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ. [Prior Case History: 36 Misc 3d 1229(A), 2012 NY Slip Op 51545(U).]