Esbe Holdings, Inc. v. Vanquish Acquisition Partners, LLC
| Citation | 858 N.Y.S.2d 94,2008 NY Slip Op 03135,50 A.D.3d 397 |
| Decision Date | 10 April 2008 |
| Docket Number | 3358. |
| Parties | ESBE HOLDINGS, INC., et al., Appellants, v. VANQUISH ACQUISITION PARTNERS, LLC, et al., Respondents. |
| Court | New York Supreme Court Appellate Division |
The court correctly found that plaintiffs' fraud claims related to the Phoenix LP investment and restructuring, the November 1997 subscriptions agreements, and Tech, Phoenix Cruise Lines, and Molifor were time-barred (CPLR 213 [8]).
Plaintiffs' claims based on alleged misrepresentations concerning the successful completion of earlier transactions and the alleged failure to disclose the fact that defendants Carstens and Joseph Del Valle were sanctioned, censured, and banned by the National Association of Securities Dealers in 1992 were properly dismissed, because such misrepresentations, even if they induced plaintiffs to invest in certain companies, did not relate to the financial condition of any of the companies and therefore did not directly cause the loss about which plaintiffs complain (see Laub v Faessel, 297 AD2d 28, 31 [2002]).
Dismissal was warranted also because the claims based on alleged misrepresentations lacked "the requisite particularity" (Orix Credit Alliance v Hable Co., 256 AD2d 114, 116 [1998]; Eastman Kodak Co. v Roopak Enters., 202 AD2d 220 [1994]; CPLR 3016 [b]). The complaint refers to "certain plaintiffs," "various plaintiffs," and "the Del Valle Defendants," which, as the court observed, makes it impossible to determine which plaintiffs relied on alleged misstatements and which defendants made the misstatements.
Claims based upon defendants' projections of returns on investment, such as the expected acquisition of the Orient Cruise Lines and the projected Southeast Cruise Holdings acquisitions, are not actionable because such projections are merely statements of prediction or expectation (see Naturopathic Labs. Intl., Inc. v SSL Ams., Inc., 18 AD3d 404, 404 [2005]).
The court also properly dismissed the fraud claims as duplicative of the breach of contract claims, since they arose...
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