Opinion
2013-11-26
ZOHAR CDO 2003–1 LIMITED, et al., Plaintiffs–Appellants, v. XINHUA SPORTS & ENTERTAINMENT LIMITED, et al., Defendants, Loretta Fredy Bush, Defendant–Respondent.
Shapiro, Arato & Isserles LLP, New York (Marc E. Isserles of counsel), for appellants. Drinker Biddle & Reath LLP, New York (Clay J. Pierce of counsel), for respondent.
Shapiro, Arato & Isserles LLP, New York (Marc E. Isserles of counsel), for appellants. Drinker Biddle & Reath LLP, New York (Clay J. Pierce of counsel), for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 24, 2012, which granted the motion of defendant Loretta Fredy Bush to dismiss the second cause of action alleging negligent misrepresentation as against her, unanimously affirmed, with costs.
Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm's-length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v. UBS AG, 95 A.D.3d 185, 208–209, 941 N.Y.S.2d 59 [1st Dept.2012]; AJW Partners LLC v. Itronics Inc., 68 A.D.3d 567, 568, 892 N.Y.S.2d 46 [1st Dept.2009] ). In addition, the complaint failed to allege facts giving rise to a special relationship. That defendant had superior knowledge of her company's business and finances is not the type of special knowledge or expertise that will support this claim (see MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 296–297, 928 N.Y.S.2d 229 [1st Dept.2011] ). Nor do the past dealings of plaintiffs' collateral manager with defendant, all in arm's-length transactions, create a special relationship. FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ., concur.