Opinion
January 11, 2000
Order, Supreme Court, New York County (Edward Lehner, J.), entered November 12, 1998, which, inter alia, denied plaintiffs' motion to file a proposed second amended complaint to add causes of action for fraud and breach of express warranty as against defendant Dryvit Systems, Inc., unanimously affirmed, without costs.
Mitchell David Cohen for Plaintiffs-Appellants.
Andrew P. Fishkin for Defendant-Respondent.
WILLIAMS, J.P., MAZZARELLI, WALLACH, ANDRIAS, FRIEDMAN, JJ.
Plaintiffs admittedly did not see the brochures that contained the alleged misrepresentations until after they discovered the complained of damage, and thus could not have relied on them, a necessary element of the proposed fraud cause of action (see, DH Cattle Holdings Co. v. Smith, 195 A.D.2d 202, 208). Plaintiffs' assertion that their architect, acting as their representative, saw and relied on the brochures, is unsupported by the record. Moreover, all of the cited representations constitute mere opinion or puffery and not actionable representations of fact. The breach of express warranty claim is barred by virtue of the four-year Statute of Limitations (UCC 2-725 ).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.