Reitler Kailas & Rosenblatt LLC, New York (Edward P.
Grosz of counsel), for appellants.
Office of Jeffrey M. Haber, New York (Jeffrey M. Haber of
counsel), for respondent.
Acosta, P.J., Richter, Andrias, Kahn, Gesmer, JJ.
Supreme Court, New York County (Jeffrey K. Oing, J.), entered
on or about January 13, 2016, which, to the extent appealed
from, denied defendants' motion to dismiss
plaintiff's fraudulent inducement claim, unanimously
affirmed, without costs. Appeal from so-ordered transcript,
same court and Justice, entered on or about March 2, 2016,
unanimously dismissed, without costs, as moot.
alleges that defendants fraudulently induced him to enter
into an exclusive recording agreement and to provide $500,
000 to them by making certain promises or claims, including
that (1) their record label was highly successful and that
they had previously successfully represented famous recording
artists; (2) they would promote plaintiff's music to
radio broadcasting venues; (3) they would organize marketing
events to promote plaintiff's single; (4) they would
organize a radio tour; and (5) they would promote the
re-release of the single around Valentine's Day 2015.
pleaded a cognizable claim for fraudulent inducement based on
the first alleged misrepresentations (Lama Holding Co. v
Smith Barney, 88 N.Y.2d 413, 421 ; see also
GoSmile, Inc. v Levine, 81 A.D.3d 77, 81 [1st Dept
2010], lv dismissed 17 N.Y.3d 782');">17 N.Y.3d 782 ). The
alleged misrepresentations were not mere opinion or puffery,
but included specific misrepresentations concerning the Think
Say defendants' experience in promoting performing
artists (see Sokolow, Dunaud, Mercadier & Carreras v
Lacher, 299 A.D.2d 64, 70-71 [1st Dept 2002]).
respect to the other four alleged promises or claims, the
complaint adequately alleges that defendants made specific
representations concerning the actions that they would
undertake to promote plaintiff's single in order to
induce him to self-fund their promotional campaign while
never intending to perform, and were, in effect, engaging in
a Ponzi scheme. Although "[m]ere promissory statements
as to what will be done in the future are not actionable, ...
if a promise was actually made with a preconceived and
undisclosed intention of not performing it, it constitutes a
misrepresentation of a material existing fact upon which an
action for rescission may be predicated" (Sabo v
Delman, 3 N.Y.2d 155, 160  [internal quotation
marks omitted]; see Laduzinski v Alvarez & Marsal
Taxand LLC, 132 A.D.3d 164, 168-169 [1st Dept 2015];
Neckles Bldrs., Inc. v Turner, 117 A.D.3d 923,
925-926 [2d Dept 2014]). Such misrepresentations are
collateral to the agreement, and can form the basis of a
fraudulent inducement claim (Laduzinski, 132 A.D.3d
at 169 [misrepresentations regarding nature of at-will
the merger clause in the agreement, which is virtually
identical to that in Laduzinski,  is similarly
too general to bar plaintiff's claim regarding the
promotion-related promises since it " makes no reference
to the particular misrepresentations allegedly made here by
[defendants]'" (id., quoting
LibertyPointe Bank v 75 E. 125th St., LLC, 95 A.D.3d
706, 706 [1st Dept 2012]).
their pre-answer motion to dismiss, defendants failed to make
a prima facie showing that plaintiff lacks standing to
maintain this action (Deutsche Bank Trust Co. Ams. v
Vitellas, 131 A.D.3d 52, 59-60 [2d Dept 2015]; see
also Brunner v Estate of Lax, 137 A.D.3d 553, 553 [1st
considered defendants' remaining arguments and find them
 The merger clause in question in
Laduzinski, which this court found to be too general
to bar the plaintiff's fraudulent inducement claim,
"This Agreement constitutes the entire agreement
between the parties with respect to subject matter and
supersedes all previous understandings, representations,
commitments or agreements, oral or written"