AFA Protective Systems, Inc. v. American Tel. and Tel. Co., Inc.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE
• Citation: AFA Protective Systems, Inc. v. American Tel. and Tel. Co., Inc., 456 N.Y.S.2d 757, 57 N.Y.2d 912, 442 N.E.2d 1268 (N.Y. 1982)
• Decision Date: 19 October 1982
• Parties: , 442 N.E.2d 1268 AFA PROTECTIVE SYSTEMS, INC., Respondent, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC., et al., Appellants.

Page 757

456 N.Y.S.2d 757

57 N.Y.2d 912, 442 N.E.2d 1268

AFA PROTECTIVE SYSTEMS, INC., Respondent, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC., et al., Appellants.

Court of Appeals of New York.

Oct. 19, 1982.

Guy Miller Struve and Jim G. Kilpatric, New York City, for American Tel. and Tel. Co., Inc., appellant.

Harold S. Levy, New York City, for New York Tel. Co., appellant.

William F. Sondericker, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (20 NYCRR 500.2[g] ), order of the Appellate Division, 86 App.Div.2d 584, 448 N.Y.S.2d 428, modified, with costs to defendants, by granting defendants' motion for summary judgment to the extent of dismissing the complaint insofar as it seeks damages for loss of profit, and as so modified, affirmed. Question certified answered in the negative.

Questions of fact exist as to whether defendants' representatives intended their statements to be opinions or positive statements of present intention, and as to whether plaintiff's claims are time barred.

The issue of whether a "special relationship" exists sufficient to make out a cause of action for negligent misrepresentation should also be left to the finder of fact (White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315; International Prods. Co. v. Erie R.R. Co., 244 N.Y. 331, 155 N.E. 662; Coolite Corp. v. American Cyanamid Co., 52 A.D.2d 486, 384 N.Y.S.2d 808; see, also, Restatement, Torts 2d, § 552).

As for damages, the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud (Reno v. Bull, 226 N.Y. 546, 124 N.E. 144).

COOKE, C.J., and JASE...