Opinion
2013-02-26
FACIE LIBRE ASSOCIATES I, LLC, et al., Plaintiffs–Respondents, v. SECONDMARKET HOLDINGS, INC., Defendant–Appellant.
O'Hare Parnagian LLP, New York (Robert A. O'Hare Jr. of counsel), for appellant. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York (Dominic J. Picca of counsel), for respondents.
O'Hare Parnagian LLP, New York (Robert A. O'Hare Jr. of counsel), for appellant. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York (Dominic J. Picca of counsel), for respondents.
MAZZARELLI, J.P., ACOSTA, FREEDMAN, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County, (Shirley Werner Kornreich, J.), entered August 10, 2012, which, to the extent appealed from, denied defendant's motion to dismiss the cause of action alleging intentional misrepresentation, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Dismissal of the negligent misrepresentation claim is warranted because plaintiffs failed to allege any out-of-pocket loss as a result of the subject transaction, as opposed to lost profits ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). Although defendant raised this argument for the first time on appeal, “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review, we may consider a new legal argument raised for the first time in this Court” ( Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [1st Dept. 2009] ).