Tribune Printing Co., Inc. v. 263 Ninth Ave. Realty, Inc.

OPINION OF THE COURT Memorandum. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division, except that, contrary to the statement in said memorandum, a representation which is promissory in nature may constitute a misrepresentation of an existing fact. (Adams v Gillig, 199 NY 314.) The correct rule provides that a false statement, promissory in nature, “may be deemed the statement of a material existing fact, because it falsely represents the [declarant’s] state of mind and the state of his mind is a fact.” (Deyo v Hudson, 225 NY 602, 612; see, also, Rudman v Cowles Communications, 30 NY2d 1, 9; Adams v Clark, 239 NY 403.) An affirmance on this point is required, however, because plaintiff has failed to proffer evidence sufficient to raise a triable issue of fact with respect to its claimed reliance on defendants’ alleged fraudulent representation. Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Meyer taking no part. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.