LESLIE DICK WORLDWIDE LTD v. MACKLOWE PROPERTIES INC (2008)

Judgments, Supreme Court, New York County (Karla Moskowitz, J.), entered December 20, 2006 and February 2, 2007, dismissing the complaint pursuant to orders, same court and Justice, entered on or about December 5, 2006 and on January 30, 2007, which, in an action arising out of plaintiffs' offer to purchase a building, granted defendants' motion pursuant to CPLR 3211 (a)(1), (7) to dismiss the complaint, unanimously affirmed, with costs.   Appeals from the orders unanimously dismissed, with costs, as subsumed in the appeals from the judgments.

The confidentiality statement signed by plaintiffs acknowledges that the building could be withdrawn from the market for any reason whatsoever, without notice, and that the sellers were “expressly reserv[ing] the right in [their] sole discretion to terminate, at any time with or without notice and without liability, any discussions with any party regarding a possible sale of the property.” After receiving this acknowledgment from plaintiffs, the sellers' agent sent plaintiffs a letter advising that the sellers were “reserv [ing] the right, in [their] sole discretion, to accept or reject any offer for any reason,” and that factors in addition to price would be considered in selecting a purchaser, including level of due diligence, closing capacity and credibility, and earnest money deposit.   This documentary evidence suffices to negate any reasonable reliance on any prior representations that the building would be sold at auction to the highest bidder.   Accordingly, plaintiffs do not have a cause of action for fraud (see Banner Indus. v. Schwartz, 204 A.D.2d 190, 612 N.Y.S.2d 861 [1994], lv. denied 84 N.Y.2d 804, 617 N.Y.S.2d 137, 641 N.E.2d 158 [1994];  Daily News v. Rockwell Intl. Corp., 256 A.D.2d 13, 14, 680 N.Y.S.2d 510 [1998], lv. denied 93 N.Y.2d 803, 689 N.Y.S.2d 16, 711 N.E.2d 201 [1999] ) or promissory estoppel (see Steele v. Delverde S.R.L., 242 A.D.2d 414, 415, 662 N.Y.S.2d 30 [1997] ).   We have considered plaintiffs' other claims and find them without merit.