Koch v. Acker, Merrall & Condit Co.

Appellate Division of the Supreme Court of New York

Koch v. Acker, Merrall & Condit Co.

73 A.D.3d 661, 901 N.Y.S.2d 271

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 2010

StatusPublished

This text of 73 A.D.3d 661 (Koch v. Acker, Merrall & Condit Co.) 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

Koch v. Acker, Merrall & Condit Co., 73 A.D.3d 661, 901 N.Y.S.2d 271 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (Martin Shulman, J.), entered April 9, 2009, which, in an action arising out of plaintiffs purchase of allegedly counterfeit wines from defendant wine auctioneer, insofar as appealed from as limited by the briefs, denied defendant’s motion to dismiss plaintiffs causes of action under General Business Law §§ 349 and 350, unanimously reversed, on the law, with costs, the motion granted, and such causes of action dismissed.

The “Conditions of Sale/Purchaser’s Agreement” included in each of defendant’s auction catalogues contains an “as is” provision alerting prospective purchasers that defendant “makes no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value of [the wine],” that any statements made by defendant were “opinion only, and shall not be relied upon by any bidder,” and that “[prospective bidders must satisfy themselves by inspection or other means as to all considerations pertinent to any decision to place any bid.” A reasonable consumer, alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant’s alleged misrepresentations concerning the vintage and provenance of the wine it sells. Accordingly, plaintiffs claims under General Business Law §§ 349 and 350 lack merit (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 [2002]). Concur—Tom, J.P., Friedman, Nardelli, Acosta and AbdusSalaam, JJ.

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Order, Supreme Court, New York County (Martin Shulman, J.), entered April 9, 2009, which, in an action arising out of plaintiffs purchase of allegedly counterfeit wines from defendant wine auctioneer, insofar as appealed from as limited by the briefs, denied defendant’s motion to dismiss plaintiffs causes of action under General Business Law §§ 349 and 350, unanimously reversed, on the law, with costs, the motion granted, and such causes of action dismissed.

The “Conditions of Sale/Purchaser’s Agreement” included in each of defendant’s auction catalogues contains an “as is” provision alerting prospective purchasers that defendant “makes no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value of [the wine],” that any statements made by defendant were “opinion only, and shall not be relied upon by any bidder,” and that “[prospective bidders must satisfy themselves by inspection or other means as to all considerations pertinent to any decision to place any bid.” A reasonable consumer, alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant’s alleged misrepresentations concerning the vintage and provenance of the wine it sells. Accordingly, plaintiffs claims under General Business Law §§ 349 and 350 lack merit (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 [2002]). Concur—Tom, J.P., Friedman, Nardelli, Acosta and AbdusSalaam, JJ.

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Bluebook (online)

73 A.D.3d 661, 901 N.Y.S.2d 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koch-v-acker-merrall-condit-co-nyappdiv-2010.

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