Princes Point, LLC v. AKRF Engineering, P.C.

In this action arising from a real estate contract pursuant to which plaintiff agreed to purchase from defendants Allied Princes Bay Co. and Allied Princes Bay Co. #2, L.E (Allied) a 23-acre parcel of waterfront property that had previously been listed by the Department of Environmental Conservation as a hazardous waste site, a disagreement occurred over the propriety of the shoreline revetment seawall, an issue which delayed obtaining various development approvals and forestalled the contract’s closing. Plaintiff commenced the instant action asserting causes of action for fraud in the inducement against Allied, fraud against defendant AKRF Engineering, P.C., the company that constructed the revetment, negligent misrepresentation against all defendants, and specific performance of the contract as well as rescission of an amendment to the contract against Allied. Plaintiffs motion to amend the complaint to add additional [460] causes of action was properly denied. The proposed fraud claim is duplicative of the previously pled rescission claims (see Pollak v Moore, 85 AD3d 578, 579 [2011]), and the new damages sought, consequential and punitive, are unavailable to plaintiff on the claims asserted. Damages for fraud are to compensate plaintiffs for what they lost, “ ‘not to compensate them for what they might have gained’ ” (Starr Found. v American Intl. Group, Inc., 76 AD3d 25, 27 [2010], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]), and punitive damages are not warranted since plaintiff has not alleged wrongdoing evincing a high degree of moral turpitude that demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations (Ross v Louise Wise Servs., Inc., 8 NY3d 478 [2007]). Plaintiff’s claim for promissory estoppel fails since, pursuant to the contract, the property was being purchased “as is,” plaintiff accepted all defects in the premises and was not relying on any assurances made by defendants as to the condition of the property. In addition, the contract included a clause stating that it represented the entire understanding between the parties (Fariello v Checkmate Holdings, LLC, 82 AD3d 437, 438 [2011]). Plaintiff failed to plead facts that are sufficient to support a cause of action for prima facie tort because the allegations do not establish that defendants’ purportedly tortious conduct was motivated by an otherwise lawful act performed with the intent to injure or with a “disinterested malevolence” (see Curiano v Suozzi, 63 NY2d 113, 117 [1984]; Kleinerman v 245 E. 87 Tenants Corp., 74 AD3d 448 [2010]). Plaintiffs allegation of malevolence is contrary to its allegation concerning defendants’ alleged profit motives (see Meridian Capital Partners, Inc. v Fifth Ave. 58/59 Acquisition Co. LP, 60 AD3d 434 [2009]). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.P, Moskowitz, Richter, AbdusSalaam and Román, JJ.