Greenman–Pedersen, Inc., et al., Plaintiffs–Appellants, v. Berryman & Henigar, Inc., et al., Defendants–Respondents. (2011)

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Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 6, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint's first cause of action alleging fraud, unanimously reversed, on the law, with costs, and the motion denied.

The motion court erred by dismissing the claim sounding in fraud, as it was independent of the breach of contract claim (see Freedman v. Pearlman, 271 A.D.2d 301, 304 [2000];  First Bank of Ams. v. Motor Car Funding, 257 A.D.2d 287, 291–292 [1999] ).   At this early stage, it cannot be said, as a matter of law, that defendants did not have a duty to disclose such matters as the alleged adverse contract information and information about their pre-closing billing practices.   The facts, as they develop, may demonstrate that defendants had a duty to speak regarding the above matters due to their superior knowledge of those facts

(see DDJ Mgt., LLC v. Rhone Group L.L.C., 78 AD3d 442, 444–445 [2010];  P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 A.D.2d 373 [2003];  Swersky v. Dreyer & Traub, 219 A.D.2d 321 [1996] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK