GARDIANOS v. CALPINE CORPORATION (2005)

In an action, inter alia, to rescind an option contract for the sale of real estate and to recover damages for negligent misrepresentation, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated February 19, 2003, as granted that branch of the defendants' motion pursuant to CPLR 3211(a)(7) which was to dismiss the second cause of action to recover damages for negligent misrepresentation, (2) from an order of the same court dated August 12, 2003, which, upon converting the remainder of the defendants' motion pursuant to CPLR 3211(c) to one for summary judgment, granted the motion for summary judgment dismissing the remaining causes of action, and (3) from an order of the same court dated December 4, 2003, which granted the defendants' motion to direct specific performance of the option contract.

ORDERED that the order dated February 19, 2003, is affirmed insofar as appealed from;  and it is further,

ORDERED that the orders dated August 12, 2003, and December 4, 2003, are affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The plaintiff commenced this action to rescind an option agreement for the sale of real property, alleging false representation, negligent misrepresentation, mutual mistake, and unjust enrichment based on the defendants' alleged misrepresentation of its reason for entering into the agreement.

The Supreme Court properly granted that branch of the defendants' motion which was to dismiss the cause of action to recover damages for negligent misrepresentation where there was no evidence of a special relationship between the parties (see Goldman v. Strough Real Estate, 2 A.D.3d 677, 770 N.Y.S.2d 94;  WIT Holding Corp. v. Klein, 282 A.D.2d 527, 724 N.Y.S.2d 66;  Houlihan/Lawrence, Inc. v. Duval, 228 A.D.2d 560, 644 N.Y.S.2d 553;  Pappas v. Harrow Stores, 140 A.D.2d 501, 504, 528 N.Y.S.2d 404;  Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450;  Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 672 N.Y.S.2d 8).

With respect to the causes of action alleging false representation, mutual mistake, and unjust enrichment, the defendants demonstrated their entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiff to submit admissible evidence raising a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In opposition to the defendants' motion, the plaintiff failed to raise a triable issue of fact (see Fiorilla v. County of Putnam, 1 A.D.3d 475, 767 N.Y.S.2d 281;  Micciche v. Homes by Timbers, 1 A.D.3d 326, 767 N.Y.S.2d 56).

The plaintiff's remaining contentions are without merit.