Pearlman v. Friedman Alpren & Green LLP

300 A.D.2d 203, 750 N.Y.S.2d 869, 2002 N.Y. App. Div. LEXIS 12813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered on or about May 15, 2002, which, to the extent appealed from, granted defendant’s motion insofar as to dismiss, pursuant to CPLR 3211 (a) (7), plaintiffs’ first cause of action for negligent misrepresentation, third cause of action for negligence, and request for punitive damages in connection with their second cause of action for breach of fiduciary duty, unanimously affirmed, with costs.

The motion court properly dismissed plaintiffs’ first cause of action for negligent misrepresentation, since the allegedly wrongful representation of defendant accounting firm to plaintiffs, its clients, i.e., that if plaintiffs put additional funds into their company, Whirlaway, factors would continue to extend Whirlaway credit, amounts to no more than a nonactionable “expression of future expectation” (Bower v Atlis Sys., 182 AD2d 951, 953, lv denied 80 NY2d 758; cf. Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407).

Also proper was the motion court’s dismissal of plaintiffs’ negligence claim, since plaintiffs’ allegations in support of the claim, namely, that if defendant had advised them to invest additional funds as side collateral with Rosenthal and Rosenthal, Inc., a company from which they sought financing, Whirlaway would have been protected from the claims of general unsecured creditors and Rosenthal would thereafter have refunded the investment in full, are grossly speculative (see Perkins v Norwick, 257 AD2d 48; see also Sherwood Group v Dornbush, Mensch, Mandelstam & Silverman, 191 AD2d 292, 294).

Finally, the court’s conclusion that punitive damages would not be warranted was correct since plaintiffs did not allege the requisite intentional or deliberate wrongdoing, aggravating or outrageous circumstances, fraudulent or evil motive, or conscious act in willful and wanton disregard of another’s rights (cf. Don Buchwald & Assoc. v Rich, 281 AD2d 329, 330). Concur — Tom, J.P., Andrias, Rosenberger, Friedman and Marlow, JJ.