The following papers read on this motion: Notice of Motion and Affidavits X Memorandum of Law in Support of Motion X Affirmation in Opposition X Reply Affirmation X Relief Requested Motion by the defendants Double G Funds, Inc. and Steven Greenstein, for an order pursuant to CPLR 3211(a)(1) and (7), dismissing the plaintiff’s cause of action as against them sounding in negligent misrepresentation. The plaintiff submits opposition. The defendants submit a reply affirmation. Background The plaintiff initiated the instant action to recover stemming from a sale of merchandise to non-party Hayk Ghazaryan. Upon completing the sale, various credit card transactions were awaiting approval. The plaintiff claims that during this period of time, it sought the counsel of defendants, who advised that it could release the merchandise to Mr. Ghazaryan upon his bank’s approval. Mr. Ghazaryan’s bank initially appeared to approve of the credit transactions, and plaintiff allowed Mr. Ghazaryan to leave its premises with the merchandise. However, the credit transactions were later rejected, and Mr. Ghazaryan refused to return the merchandise. Applicable Law On a motion to dismiss pursuant to CPLR 3211, the facts alleged are accepted as true and dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Arnay Indus. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300). However, in circumstances where the plaintiff’s legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference, and the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (Griffin v. Anslow, 17 A.D.3d 889, quoting Morgenthow & Latham v. Bank of N.Y. Co., 305 A.D.2d 74). A claim for negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special relationship imposing a duty on a defendant to impart correct information to plaintiff; (2) that the information was incorrect; and (3) detrimental reliance on the information (Prospect Funding Holdings L.L.C. v. Paiz, 2018 NY Slip Op 30149, citing J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144). Although strict privity is not required between the party giving the representation and the party receiving the information, in order to recover for economic loss, the resulting relationship should be “approach[ing] that of privity, if not completely one with it” (Boccardo v. Citibank, N.A., 152 Misc.2d 1012). Discussion The plaintiff essentially alleges that, through a series of phone calls and emails which took place after it had completed its sale to Mr. Ghazaryan, it detrimentally relied on the incorrect information provided by the defendants. The plaintiff claims that the defendants induced it to believe that it was clear to release the merchandise to Mr. Ghazaryan, when in fact the transactions were ultimately rejected despite the bank’s approval codes. Here, plaintiff’s Amended Complaint fails to allege any facts regarding the relationship between itself and the defendants. When given the opportunity to oppose the instant motion, plaintiff fails to point to any involvement of Double G Funds, Inc. While plaintiff notes that Mr. Greenstein may have had involvement with other entities that have been released from the instant matter, there is no indication of any relationship with Double G Funds, Inc. or Mr. Greenstein individually, let alone one “approaching that of privity” (see Boccardo, supra; see also J.A.O. Acquisition Corp., supra). Conclusion In light of the foregoing, it is hereby ORDERED that the defendants’ motion is granted, and therefore, the instant action is dismissed. Dated: September 21, 2020
