AWAY ENVIRONMENTAL INC v. TOWN OF CLARKSTOWN (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for negligent misrepresentation, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated December 22, 2022.  The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for negligent misrepresentation.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2022, the plaintiffs commenced this action against the defendant, Town of Clarkstown, inter alia, to recover damages for negligent misrepresentation.  In March 2022, the Town moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent misrepresentation.  The plaintiffs opposed the motion.  By order dated December 22, 2022, the Supreme Court, inter alia, granted that branch of the Town's motion.  The plaintiffs appeal.

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Pergament v. Government Empls. Ins. Co. [“GEICO”], 225 A.D.3d 799, 800, 207 N.Y.S.3d 655 [internal quotation marks omitted];  see Clevenger v. Yuzek, 222 A.D.3d 931, 934, 203 N.Y.S.3d 114).

“In order to state a cause of action for negligent misrepresentation, a plaintiff must allege ‘(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff;  (2) that the information was incorrect [or withheld];  and (3) reasonable reliance on the information [or omission]’ ” (Neurological Surgery, P.C. v. Group Health Inc., 224 A.D.3d 700, 703, 205 N.Y.S.3d 152, quoting Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180, 919 N.Y.S.2d 465, 944 N.E.2d 1104).  “ ‘Generally, a special relationship does not arise out of an ordinary arm's length business transaction between two parties’ ” (id., quoting Feldman v. Byrne, 210 A.D.3d 646, 650, 178 N.Y.S.3d 525;  see Borovina v. ACAP Fund GP, LLC, 220 A.D.3d 729, 730, 197 N.Y.S.3d 548).  Indeed, a “conventional business relationship, without more, is insufficient to create a fiduciary relationship.  Rather, a plaintiff must make a showing of special circumstances that could have transformed the parties’ business relationship to a fiduciary one, such as control by one party of the other for the good of the other” (Feldman v. Byrne, 210 A.D.3d at 650, 178 N.Y.S.3d 525 [internal quotation marks omitted]).

Here, the plaintiffs failed to adequately state a cause of action to recover damages for negligent misrepresentation.  The plaintiffs failed to sufficiently allege the existence of a special or privity-like relationship imposing a duty on the Town to impart correct information to the plaintiffs (see Neurological Surgery, P.C. v. Group Health Inc., 224 A.D.3d at 703, 205 N.Y.S.3d 152;  Borovina v. ACAP Fund GP, LLC, 220 A.D.3d at 730, 197 N.Y.S.3d 548).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent misrepresentation.

BARROS, J.P., FORD, WAN and LOVE, JJ., concur.