ESE FUNDING SPC LTD v. MORGAN STANLEY

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ESE FUNDING SPC LTD., Plaintiff-Appellant, v. MORGAN STANLEY, et al., Defendants-Respondents.

Decided: December 29, 2009

ANDRIAS, J.P., FRIEDMAN, ACOSTA, DeGRASSE, ROMÁN, JJ. Scarola Ellis LLP, New York (Richard J.J. Scarola of counsel), for appellant. Venable LLP, New York (Edward P. Boyle of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered January 29, 2009, which, to the extent appealed from, granted that portion of defendants' motion to dismiss the 9th, 10th and 11th causes of action, alleging negligent misrepresentation, unanimously affirmed, with costs.

Plaintiff negotiated an arm's length commercial contract with defendant Morgan Stanley Altabridge to purchase defendants' financial risk associated with a third-party security transaction. Plaintiff has made no showing that any of these defendants had a “special relationship” with plaintiff (cf. Kimmell v. Schaefer, 89 N.Y.2d 257, 652 N.Y.S.2d 715, 675 N.E.2d 450 [1996] ).

We have reviewed plaintiff's remaining arguments and find them unavailing.