From Casetext: Smarter Legal Research

Koch v. Acker, Merrall Condit Company

Appellate Division of the Supreme Court of New York, First Department
May 27, 2010
73 A.D.3d 661 (N.Y. App. Div. 2010)

Opinion

No. 2902.

May 27, 2010.

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 plaintiff's 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.

Meister Seelig Fein LLP, New York (Stephen B. Meister of counsel), for appellant.

Irell Manella LLP, Los Angeles, CA (Gregory R. Smith, of the California Bar, admitted pro hac vice, of counsel), for respondent.

Before: Tom, J.P., Friedman, Nardelli, Acosta and Abdus-Salaam, JJ.


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 "[p]rospective 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).


Summaries of

Koch v. Acker, Merrall Condit Company

Appellate Division of the Supreme Court of New York, First Department
May 27, 2010
73 A.D.3d 661 (N.Y. App. Div. 2010)
Case details for

Koch v. Acker, Merrall Condit Company

Case Details

Full title:WILLIAM I. KOCH, Respondent, v. ACKER, MERRALL CONDIT COMPANY, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 27, 2010

Citations

73 A.D.3d 661 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 4515
901 N.Y.S.2d 271

Citing Cases

Koch v. Kurniawan

He asserted causes of action for common law fraud, violations of the New York General Business Law, breach of…