The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge:
This is defendant's motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56.
Plaintiff's predecessor in interest, Wild Bill Realty Corp., and
defendant entered into a contract of sale (the Contract) in June 1987 for
the 42 unit building at 225 West End Avenue, New York, New York (the
Premises).*fn1 Plaintiff alleges that
defendant committed fraud by making misrepresentations to William
Eichengrun ("Eichengrun"),*fn2 before the closing on November 19, 1987.
Plaintiff seeks damages based on the contention that he relied on
defendant's misrepresentations in an unsuccessful application to the New
York Attorney General for approval of a plan to convert the Premises to a
cooperative or a condominium ("the conversion plan").
The Attorney General rejected plaintiff's conversion plan because the
Premises had one more "long-term vacancy" than was permitted by New York
General Business Law § 352-eeee(2) ("the anti-warehousing law") on
April 15, 1988, the day plaintiff submitted its conversion plan.*fn3 The
Attorney General found that, in addition to the four apartments listed on
plaintiff's application as "long-term vacancies," Apartment 54 was a
"long-term vacancy." A "long-term vacancy" is defined as a "dwelling
unit not leased or occupied by bona fide tenants for more than five
months prior to the date of such submission [of a conversion plan] to the
department of law." N YGen.Bus.Law § 352-eeee(2). Plaintiff contends
that defendant falsely represented that Apartment 54 had not been vacated
until November 18, 1987 which caused plaintiff to rely on that apartment
not being deemed a "long-term vacancy" on April 15, 1988.
Plaintiff does not claim that defendant did not comply with the
requirements for a closing on the Contract.*fn4 Plaintiff's claim is
that it detrimentally relied on misrepresentations made by defendant in
the Contract and after the signing of the Contract, which were not
required for the closing of the sale.
To grant a motion for summary judgment a court must find that there is
no genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law because, after sufficient time
for discovery, the non-moving party has failed to make a sufficient
showing of an essential element of its case as to which it has the burden
of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
Here, plaintiff has the burden of proving fraud which requires proving
the following elements: (1) that defendant misrepresented a fact, (2)
which was false and known to be false by the defendant, (3) that the
representation was made for the purpose of inducing the plaintiff to rely
upon it, (4) the plaintiff justifiably did so rely, and (5) the reliance
caused injury to plaintiff. See Clearview Concrete Products Corp, v. S.
Charles Gherardi, Inc., 88 A.D.2d 461, 453 N.Y.S.2d 750, 754-55 (2d
Dept. 1982) (citing Channel Master Corp. v. Aluminum Ltd. Sales,
4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 (1958); Restatement, Torts
2d, § 524).
Plaintiff alleges four misrepresentations by defendant: the Contract,
defendant's affidavit of November 19, 1987, an oral statement by
defendant on November 19, 1987, and defendant's affidavit of February
23, 1989. The Court finds that the Contract and the affidavit of November
19, 1987 cannot constitute fraud because they fail to offer information
upon which plaintiff could justifiably rely for the proposition that
Apartment 54 was vacant for less than five months on April 15, 1988. The
Court finds that the oral statement and the February 23, 1989 affidavit
do not constitute fraud here because plaintiff was not justified in
relying on those two representations as the basis for believing that the
conversion plan would satisfy the anti-warehousing law and because
reliance on the representations in those two documents was not the cause
of plaintiff's injury.*fn5
A. The Contract and Affidavit of November 19, 1987
In the Opinion and Order of November 14, 1989, the Court reviewed in
detail the texts of the Contract and defendant's affidavit of November
19, 1987, which plaintiff had submitted in support of its fraud claim.
The Court found that the Contract and defendant's affidavit of November
19, 1987 made no representations upon which plaintiff could rely either
for the proposition that Apartment 54 would not be a "longterm vacancy"
on April 15, 1988 or for the proposition that the Premises would satisfy
the conditions of the anti-warehousing law on April 15, 1988. Neither
document stated or implied that Apartment 54 had not become vacant
earlier than November 15, 1987. See Opinion at 7-9. Plaintiff has come
forward with no evidence to contradict those conclusions as to the
meaning of the Contract and the affidavit of November 19, 1987.
Accordingly, the Court finds that the Contract and the November 19, ...