WINDSONG LANE FARMS PLAINTIFF APPELLANT RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from a judgment of the Supreme Court, Jefferson County (Joseph D. McGuire, J.), entered August 27, 2009.   The judgment, inter alia, found for plaintiff on its third cause of action and awarded no damages.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Plaintiff subsequently moved, inter alia, to “amend” or to set aside the verdict or for a new trial pursuant to CPLR 4404 based upon juror confusion inasmuch as the affidavits of all six jurors obtained after the trial indicated that they were confused by the question on the verdict sheet that asked them to “[s]tate separately” the amount of damages.   According to the juror affidavits, the jury intended to award plaintiff 30% of $693,907, which was the amount plaintiff paid in monthly lease payments before the leases were bought out.   Plaintiff also moved for a new trial on the ground that the court erred in charging the jury on comparative fault with respect to the negligent misrepresentation cause of action.

We conclude that the court properly charged the jury with respect to comparative fault of plaintiff's principals in relying upon representations made by defendant Ronald J. Pope and thus that the court properly denied plaintiff's post-trial motion on that ground.  “[T]he determination ․ whether defendant[s], by negligent misrepresentation, breached a duty to plaintiff and proximately caused the injury turns on the reasonableness of [the] parties' conduct.   Defendant[s] must have imparted the information under circumstances and in such a way that it would be reasonable to believe plaintiff would rely upon it;  plaintiff must rely upon it in the reasonable belief that such reliance is warranted” (Heard v. City of New York, 82 N.Y.2d 66, 75, rearg. denied 82 N.Y.2d 889).   Here, the court properly determined that the charge was warranted inasmuch as the evidence established that plaintiff's principals signed the lease agreements without reading them and that the financial institution with which plaintiff had a long-term relationship had advised against an extensive expansion project.

We have reviewed the remaining contentions of plaintiff on its appeal and the contentions of defendants on their cross appeal and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court