Opinion
Nos. 3516, 3516A, 3516B.
April 29, 2008.
Judgments, Supreme Court, New York County (Karla Moskowitz, J.), entered December 20, 2006 and February 2, 2007, dismissing the complaint pursuant to orders, same court and Justice, entered on or about December 5, 2006 and on January 30, 2007, which, in an action arising out of plaintiffs' offer to purchase a building, granted defendants' motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, unanimously affirmed, with costs. Appeals from the orders unanimously dismissed, with costs, as subsumed in the appeals from the judgments.
Hantman Associates, New York (Robert J. Hantman of counsel), for appellants.
Fried, Frank, Harris, Shriver Jacobson LLP, New York (Brian J. Howard of counsel), for Macklowe Properties, Inc., Fifth Avenue 58/59 Acquisition Co., L.P. and Harry Macklowe, respondents.
Golenbock Eiseman Assor Bell Peskoe LLP, New York (Jacqueline G. Veit of counsel), for Eastdil Realty Company, LLC, Benjamin V. Lambert and Wayne L. Maggin, respondents.
Butler, Fitzgerald, Fiveson McCarthy, P.C., New York (David J. McCarthy of counsel), for George Soros and Soros Fund Management LLC, respondents.
Kirkland Ellis LLP, New York (Matthew F. Dexter of counsel), and Kirkland Ellis LLP, Chicago, IL (Reed S. Oslan, of the Illinois Bar, admitted pro hac vice, of counsel), for Conseco, Inc., Carmel Fifth LLC, 767 Intermediate, LLC and Chuck Cremens, respondents.
Before: Tom, J.P., Mazzarelli, Andrias and Williams, JJ.
The confidentiality statement signed by plaintiffs acknowledges that the building could be withdrawn from the market for any reason whatsoever, without notice, and that the sellers were "expressly reserv[ing] the right in [their] sole discretion to terminate, at any time with or without notice and without liability, any discussions with any party regarding a possible sale of the property." After receiving this acknowledgment from plaintiffs, the sellers' agent sent plaintiffs a letter advising that the sellers were "reserv[ing] the right, in [their] sole discretion, to accept or reject any offer for any reason," and that factors in addition to price would be considered in selecting a purchaser, including level of due diligence, closing capacity and credibility, and earnest money deposit. This documentary evidence suffices to negate any reasonable reliance on any prior representations that the building would be sold at auction to the highest bidder. Accordingly, plaintiffs do not have a cause of action for fraud ( see Banner Indus, v Schwartz, 204 AD2d 190, lv denied 84 NY2d 804; Daily News v Rockwell Intl. Corp., 256 AD2d 13, 14, lv denied 93 NY2d 803) or promissory estoppel ( see Steele v Delverde S.R.L., 242 AD2d 414, 415). We have considered plaintiffs' other claims and find them without merit.