Opinion
2012-10-9
HEALTHWAVE INCORPORATED, et al., Plaintiffs–Respondents, v. NEW YORK SOCIETY FOR THE RELIEF OF THE RUPTURED AND CRIPPLED MAINTAINING THE HOSPITAL FOR SEPCIAL SURGERY, etc., et al., Defendants, John R. Reynolds, Defendant–Appellant.
Stillman & Friedman, P.C., New York (Michael J. Grudberg of counsel), for appellant. Richard Radoccia, respondents pro se.
Stillman & Friedman, P.C., New York (Michael J. Grudberg of counsel), for appellant. Richard Radoccia, respondents pro se.
SAXE, J.P., SWEENY, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 1, 2011, which, insofar as appealed from, denied the motion of defendant Reynolds to dismiss the seventh cause of action alleging fraudulent inducement, unanimously affirmed, without costs.
Dismissal of the fraudulent inducement claim as against Reynolds was not warranted at this stage of the litigation. The record shows that plaintiffs raised the inference that their exercise of reasonable diligence was fruitless under the circumstances by alleging that defendants' fraudulent conduct was not readily apparent and could not have been discovered through ordinary intelligence based upon a review of the available documents ( see e.g. Madison Apparel Group Ltd. v. Hachette Filipacchi Presse, S.A., 52 A.D.3d 385, 861 N.Y.S.2d 296 [1st Dept.2008] ). Nor were plaintiffs required, under the circumstances, to engage in heightened due diligence.
The alleged representations made by Reynolds do not consist of non-actionable statements of future opinions, intentions or expectation. Rather, plaintiffs alleged misrepresentations of Reynolds' present intention, as well as future promises and statements of expectations, for which there are allegations that would support the inference that they were made with a present intention that they would not be carried out ( see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wise Metals Group, LLC, 19 A.D.3d 273, 275, 798 N.Y.S.2d 14 [1st Dept.2005];Pease & Elliman, Inc. v. Wegeman, 223 App.Div. 682, 684, 229 N.Y.S. 398 [1st Dept.1928] ).
The parties' agreement contained a general merger clause, which does not operate to preclude plaintiffs' claim of fraudulent inducement ( see LibertyPointe Bank v. 75 E. 125th St., LLC, 95 A.D.3d 706, 946 N.Y.S.2d 26 [1st Dept.2012];Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wise Metals Group, LLC, 19 A.D.3d at 275, 798 N.Y.S.2d 14).