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Sehera Food Services Inc. v. Empire State Building Co. L.L.C.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 10, 2010

SEHERA FOOD SERVICES INC. DOING BUSINESS AS APPLE CAFÉ, PLAINTIFF-APPELLANT,
v.
EMPIRE STATE BUILDING COMPANY L.L.C., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered January 22, 2010, which, inter alia, denied plaintiff's motion for leave to amend its complaint to add a cause of action for fraud in the inducement, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Catterson, Moskowitz, Acosta, JJ.

108325/07

Supreme Court providently exercised its discretion in denying leave to amend, since plaintiff's proposed claim of fraudulent inducement was not viable (see e.g. Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]), as it failed to allege a material misrepresentation made with the intention of inducing reliance (see Rivera v JRJ Land Prop. Corp., 27 AD3d 361, 364 [2006]). Rather, plaintiff claimed that when the subject lease was executed, individuals purchasing tickets to the Empire State Building's observation deck walked directly past the subject premises, and that defendant failed to disclose a future plan to relocate the ticket office, diverting such traffic away from the premises. Plaintiff acknowledged that the lease contains no provision obligating defendant to direct ticket purchasers past the premises and that during lease negotiations no guarantees were made regarding the route to be followed by such purchasers. As such, plaintiff's claim is actually one for fraudulent concealment, which is also not viable, since there is no duty to disclose in a non-fiduciary, arm's length transaction between a landlord and tenant (see Dembeck v 220 Cent. Park S., LLC, 33 AD3d 491, 492 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100610

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