NATUROPATHIC LABORATORIES INTERNATIONAL INC v. SSL AMERICAS INC (2005)

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered March 15, 2004, which, to the extent appealed from as limited by the brief, granted defendants' motion to dismiss plaintiffs' fraud claim, unanimously affirmed, with costs.

 While we accord plaintiffs' allegations every favorable inference, it is plain in light of the documentary evidence, including the parties' letters and the unsigned Stock Purchase Agreement, that plaintiffs have no cause of action for fraud (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994];  O'Donnell, Fox & Gartner, P.C. v. R-2000 Corp., 198 A.D.2d 154, 604 N.Y.S.2d 67 [1993] ).   The March 15, 2002 letter of defendant SSL Americas, Inc.'s president, Stuart Heap, to plaintiff Naturopathic Laboratories International, Inc.'s investment bank provided that defendants “would envision funding the proposed acquisition with cash on hand and borrowings,” (emphasis added) and his May 20 and May 30 proposals used the word “intend.”   These expressions, as well as a statement allegedly made by Heap sometime in May 2002 that financing “would be no problem” for SSL International because of its size, amount to no more than statements of prediction or expectation, and as such are not actionable (see Albert Apt. Corp. v. Corbo Co., 182 A.D.2d 500, 582 N.Y.S.2d 409 [1992], lv. dismissed 80 N.Y.2d 924, 589 N.Y.S.2d 311, 602 N.E.2d 1127 [1992];  Platus Corp. Pension Plan v. Nazareth, 271 A.D.2d 422, 423, 705 N.Y.S.2d 649 [2000] ).   Further, the written statements in Heap's May 20 and May 31 proposals that financing would not be a condition of closing are not subject to construction as representations that SSL International had the funds to close, only that if it did not close for lack of financing it would be answerable in contract for its failure to do so.   To the extent that plaintiffs profess reliance on Heap's remark that the “deal was done,” and that the contract was complete but for the resolution of a pending lawsuit, it was not reasonable for them to have believed that SSL International had committed to purchasing its stock since the written language consistently used in SSL International's communications, and included in the July 30, 2002 Draft Agreement, provided that the execution and delivery of an agreement would be essential to the existence of a valid and binding contract (see Reprosystem B.V. v. SCM Corp., 727 F.2d 257, 262-263 [1984], cert. denied 469 U.S. 828, 105 S.Ct. 110, 83 L.Ed.2d 54 [1984];   Scheck v. Francis, 26 N.Y.2d 466, 311 N.Y.S.2d 841, 260 N.E.2d 493 [1970] ).

We have considered plaintiffs' remaining arguments and find them unavailing.