Opinion
9834 Index 652447/18
07-09-2019
TALL TOWER CAPITAL, LLC, Plaintiff–Respondent, v. STONEPEAK PARTNERS LP, Defendant–Appellant.
Simpson Thacher & Bartlett LLP, New York (Joseph M. McLaughlin of counsel), for appellant. King & Spalding LLP, New York (Richard T. Marooney of counsel), for respondent.
Simpson Thacher & Bartlett LLP, New York (Joseph M. McLaughlin of counsel), for appellant.
King & Spalding LLP, New York (Richard T. Marooney of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Webber, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about November 28, 2018, which granted plaintiff's motion to dismiss defendant's counterclaims for fraudulent misrepresentation, negligent misrepresentation, and violation of Florida's Deceptive and Unfair Trade Practices Act ( Fla Stat § 501.201 et seq. ), unanimously affirmed, with costs.
Applying New York conflict of laws principles, we find that an "actual conflict" exists between Florida and New York law applicable to the misrepresentation counterclaims (see Matter of Allstate Ins. Co. [Stolarz–New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 [1993] ; Elmaliach v. Bank of China Ltd., 110 A.D.3d 192, 200–202, 971 N.Y.S.2d 504 [1st Dept. 2013] ). An interest analysis demonstrates that New York has the greater interest in this dispute ( Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 521, 620 N.Y.S.2d 310, 644 N.E.2d 1001 [1994] ). While there are connections to both jurisdictions, the significant contacts with New York outweigh those with Florida ( L.K. Sta. Group, LLC v. Quantek Media, LLC, 62 A.D.3d 487, 493, 879 N.Y.S.2d 112 [1st Dept. 2009] ). Also, the law of the place of the tort applies, which here is New York, where defendant is based and sustained its injury (see SFR Holdings Ltd. v. Rice, 132 A.D.3d 424, 426, 17 N.Y.S.3d 398 [1st Dept. 2015], lv dismissed 27 N.Y.3d 977, 31 N.Y.S.3d 452, 50 N.E.3d 920 [2016] ; JAO Acquisition Corp. v. Stavitsky, 192 Misc.2d 7, 12, 745 N.Y.S.2d 634 [Sup. Ct., N.Y. County 2001], affd 293 A.D.2d 323, 739 N.Y.S.2d 821 [1st Dept. 2002] ).
Defendant failed to sufficiently allege justifiable or reasonable reliance, since the Florida lawsuit was a matter of public record and could have been verified by defendant through the exercise of ordinary diligence ( Churchill Fin. Cayman, Ltd. v. BNP Paribas, 95 A.D.3d 614, 614–615, 944 N.Y.S.2d 116 [1st Dept. 2012] ; National Union Fire Ins. Co. of Pittsburgh, Pa. v. Red Apple Group, 273 A.D.2d 140, 141, 710 N.Y.S.2d 48 [1st Dept. 2000] ; see also MP Cool Invs. Ltd. v. Forkosh, 142 A.D.3d 286, 287, 40 N.Y.S.3d 1 [1st Dept. 2016], lv denied 28 N.Y.3d 911, 2016 WL 7400720 [2016] ).
Also, as alleged, no special relationship arose between these sophisticated parties engaged in an arm's-length business transaction ( Basis Pac–Rim Opportunity Fund [Master] v. TCW Asset Mgt. Co., 124 A.D.3d 538, 539, 2 N.Y.S.3d 105 [1st Dept. 2015] ; Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 141, 980 N.Y.S.2d 21 [1st Dept. 2014] ; MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 296–297, 928 N.Y.S.2d 229 [1st Dept. 2011] ).
The majority of Florida district court decisions have concluded that only "consumers" have standing to bring a claim under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) ( Gibson v. MHHS–Sinsations, LLC, 2018 WL 3625783, *5, 2018 U.S. Dist. LEXIS 130401, *11 [M.D. Fla., June 21, 2018] ; see Gibson v. Paradise Lakes, LLC, 2017 WL 3421532, *4, 2017 U.S. Dist. LEXIS *12 [M.D. Fla., Aug. 9, 2017] ; Carroll v. Lowes Home Ctrs., Inc., 2014 WL 1928669, *3, 2014 U.S. Dist LEXIS 68525, *3 [S.D. Fla., May 6, 2014] ). The allegations demonstrate that defendant was not acting as a consumer of plaintiff's goods or services.