Facie Libre Assoc. I, LLC v SecondMarket Holdings, Inc.
Decided on February 26, 2013
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.
Mazzarelli, J.P., Acosta, Freedman, Richter, Gische, JJ.
Order, Supreme Court, New York County, (Shirley Werner Kornreich, J.), entered August 10, 2012, which, to the extent appealed from, denied defendant's motion to dismiss the cause of action alleging intentional misrepresentation, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Dismissal of the negligent misrepresentation claim is warranted because plaintiffs failed to allege any out-of-pocket loss as a result of the subject transaction, as opposed to lost profits (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 ). Although defendant raised this argument for the first time on appeal, "[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review, we may consider a new legal argument raised for the first time in this Court" (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2013
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