Zohar CDO 2003-1 Ltd. v. Xinhua Sports & Entertainment Ltd.

111 A.D.3d 578, 975 N.Y.S.2d 663

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

Opinion

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 24, 2012, which granted the motion of defendant Loretta Fredy Bush to dismiss the second cause of action alleging negligent misrepresentation as against her, unanimously affirmed, with costs.

Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm’s length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v UBS AG, 95 AD3d 185, 208-209 [1st Dept 2012]; AJW Partners LLC v Itronics Inc., 68 AD3d 567, 568 [1st Dept 2009]). In addition, the complaint failed to allege facts giving rise to a special relationship. That defendant had superior knowledge of her company’s business and finances is not the type of special knowledge or expertise that will support this claim (see MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 296-297 [1st Dept 2011]). Nor do the past dealings of plaintiffs’ collateral manager with defendant, all in arm’s-length transactions, create a special relationship. Concur — Friedman, J.R, Renwick, Freedman and Feinman, JJ.