Thomas v. McLaughlin

276 A.D.2d 440, 715 N.Y.S.2d 388, 2000 N.Y. App. Div. LEXIS 11048

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 2000
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 14, 1999, which, upon the trial court’s ruling at the close of evidence, dismissed all causes of action brought against defendant McLaughlin and the causes of action for fraud and breach of fiduciary duty brought against defendant Shearman & Sterling (S&S), and, upon the jury’s verdict, entitled defendant S&S to judgment against plaintiff on her remaining cause of action for breach of contract, unanimously affirmed, without costs.

The court properly concluded that plaintiff had failed to set forth a prima facie case that defendants had been unjustly enriched through her efforts. Uncontroverted evidence demonstrated that S&S’s expenses exceeded its revenues on the project in question and plaintiffs testimony did not substantiate her assertion that the firm was unjustly enriched by receiving an “intangible benefit”.

Also insufficiently supported were plaintiffs causes of action for breach of fiduciary duty and fraud/negligent misrepresentation. Plaintiff failed to make a prima facie showing that an actual “joint venture” between her and defendant firm had been embarked upon in the context of which the parties would have been related as fiduciaries, and the absence of a fiduciary relationship between plaintiff and defendants precluded any recovery by plaintiff from defendants on a theory of negligent misrepresentation (see, Stewart v Jackson & Nash, 976 F2d 86, 90).

Plaintiff did not present sufficient evidence to sustain her fraud causes of action, since “a representation of opinion or a prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud” (Zanani v Savad, 217 AD2d 696, 697; see also, Platus Corp. Pension Plan v Nazareth, 271 AD2d 422).

We have reviewed plaintiffs various claims of error respecting the trial court’s procedural and evidentiary rulings and find them unavailing. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Rubin, JJ.