DAILY NEWS v. ROCKWELL INTERNATIONAL CORPORATION (1998)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 2, 1998, which granted defendants' motion pursuant to CPLR 3211 (a)(7) to dismiss the complaint, unanimously affirmed, with costs.

 Plaintiff's breach of contract claim seeking consequential damages was properly dismissed since the parties' contract, which we deem to be enforceable in relevant part since there has been no showing of unconscionability, limits the remedies available thereunder and expressly excludes as a remedy the recovery of consequential damages (see, Mom's Bagels of New York, Inc. v. Sig Greenebaum, Inc., 164 A.D.2d 820, 822, 559 N.Y.S.2d 883, appeal dismissed 77 N.Y.2d 902, 568 N.Y.S.2d 917, 571 N.E.2d 87).   Even if we were to find a question of fact as to whether the available remedy failed of its essential purposes within the meaning of the UCC 2-719(2), we would find the contract language precludes an award of consequential damages (see, Scott v. Palermo, 233 A.D.2d 869, 870, 649 N.Y.S.2d 289).   Plaintiff's fraud and misrepresentation claims were also properly dismissed since they are premised upon no more than an alleged conflict between oral representations and the subsequent written terms of the parties' agreement.   Such a conflict “negates a claim of a reasonable reliance upon the oral representation” (see, Stone v. Schulz, 231 A.D.2d 707, 708, 647 N.Y.S.2d 822).   We have considered plaintiff's remaining arguments and find them to be unavailing.

MEMORANDUM DECISION.