Reich v. Mitrani Plasterers Co.

Appellate Division of the Supreme Court of New York

Reich v. Mitrani Plasterers Co.

268 A.D.2d 256, 701 N.Y.S.2d 368, 2000 N.Y. App. Div. LEXIS 334

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

DecidedJanuary 11, 2000

StatusPublished

Cited by5 cases

This text of 268 A.D.2d 256 (Reich v. Mitrani Plasterers 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

Reich v. Mitrani Plasterers Co., 268 A.D.2d 256, 701 N.Y.S.2d 368, 2000 N.Y. App. Div. LEXIS 334 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered November 12, 1998, which, inter alla, denied plaintiffs’ motion to file a proposed second amended complaint to add causes of action for fraud and breach of express warranty as against defendant Dryvit Systems, Inc., unanimously affirmed, without costs.

Plaintiffs admittedly did not see the brochures that contained the alleged misrepresentations until after they discovered the complained of damage, and thus could not have relied on them, a necessary element of the proposed fraud cause of action (see, DH Cattle Holdings Co. v Smith, 195 AD2d 202, 208). Plaintiffs’ assertion that their architect, acting as their representative, saw and relied on the brochures, is unsupported by the record. Moreover, all of the cited representations constitute mere opinion or puffery and not actionable representations of fact. The breach of express warranty claim is barred by virtue of the four-year Statute of Limitations (UCC 2-725). Concur—Williams, J. P., Mazzarelli, Wallach, Andrias and Friedman, JJ.

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—Order, Supreme Court, New York County (Edward Lehner, J.), entered November 12, 1998, which, inter alla, denied plaintiffs’ motion to file a proposed second amended complaint to add causes of action for fraud and breach of express warranty as against defendant Dryvit Systems, Inc., unanimously affirmed, without costs.

Plaintiffs admittedly did not see the brochures that contained the alleged misrepresentations until after they discovered the complained of damage, and thus could not have relied on them, a necessary element of the proposed fraud cause of action (see, DH Cattle Holdings Co. v Smith, 195 AD2d 202, 208). Plaintiffs’ assertion that their architect, acting as their representative, saw and relied on the brochures, is unsupported by the record. Moreover, all of the cited representations constitute mere opinion or puffery and not actionable representations of fact. The breach of express warranty claim is barred by virtue of the four-year Statute of Limitations (UCC 2-725). Concur—Williams, J. P., Mazzarelli, Wallach, Andrias and Friedman, JJ.

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Bluebook (online)

268 A.D.2d 256, 701 N.Y.S.2d 368, 2000 N.Y. App. Div. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reich-v-mitrani-plasterers-co-nyappdiv-2000.

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