finding “intrinsically [ ] more intimate association” than ordinary business relationship between parties because defendant required plaintiffs to form new company with solid capitalization before parties could enter distributorship agreement
How later courts described this case
- finding “intrinsically [ ] more intimate association” than ordinary business relationship between parties because defendant required plaintiffs to form new company with solid capitalization before parties could enter distributorship agreement
- holding defendant's misrepresentation that it was presently able to produce specific quantity of product was not merely a promise of future action
- defendant’s representations “con- cerning the state of its research and testing” were “represen- tations of fact and not merely promises of future action” that induced plaintiff to enter into agreement, and “[a]llegations of this character are sufficient to sustain a fraud claim”
- “[Wjhile generally there is no liability for words negligently spoken, there is an exception when the parties’ relationship suggests a closer degree of trust and reliance than that of the ordinary buyer and seller.” (citing Dorsey Prods. Corp. v. U.S. Rubber Co., 21 A.D.2d 866, 251 N.Y.S.2d 311, 313 (App.Div.1964), aff'd, 16 N.Y.2d 925, 264 N.Y.S.2d 917, 212 N.E.2d 435 (1965))
Written by the judges who cited it.
The opinion
Kupferman, J. P. (dissenting in part).
The court’s opinion dismissing the third and fourth causes of action for breach of contract is grounded on failure to give written notice of claims of individual defects. However, this avoids the basic contention of the complaint, of which individual oral claims of defect are only evidence, that, in addition to the defendant having actual knowledge in the premises, the products were warranted by contract to be of merchantable quality and in accordance with the specifications set forth, which, it is alleged, they were not. Also, that, in further breach, they did not have a warranted two-year "shelf life”; obviously a latent defect. (Wilson Trading Corp. v David Ferguson Ltd. 23 NY2d 398 .)
I would affirm the court at Special Term and leave all of the issues for trial.
Birns, J., concurs with Yesawich, J.; Capozzoli and Lane, JJ., concur in result; Kupferman, J. P., dissents in part in an opinion.
Order, Supreme Court, New York County, entered on May 1, 1975, modified, on the law, and the third and fourth causes of action dismissed in their entirety, and severed, and the order otherwise affirmed, without costs and without disbursements.