Chemical Bank v. National Union Fire Insurance

Order, Supreme Court, New York County entered June 26, 1979, which denied third-party defendant Blake’s motion for summary judgment and to dismiss the fourth cause of action in the third-party complaint, affirmed, with costs and disbursements. We would affirm for the reasons stated at Special Term but we enlarge upon them solely to respond to the issue raised by our dissenting 787 brother. If it be shown that a real estate appraiser, retained by a property owner to make an appraisal that he knows the owner will use to obtain financing, makes it in a grossly negligent manner so as to inordinately overstate the value, we are not, unlike the dissent, prepared to hold the appraiser exempt from liability to the damaged financing party. If the factual issues here be so resolved, then the principle of law stated in White v Guarente (43 NY2d 356), while directed there to an accounting firm, is broad enough in its definition to include this third-party defendant appraiser. Under White, if it were known that it was within the contemplation of the appraiser and the owner when they contracted for the appraisal that a financing party would rely upon it and be persuaded by it, then, since those whose conduct was to be so governed would be a "fixed, definable and contemplated group” (p 362), the appraiser would have assumed a duty of care for the benefit of those in the group. Our dissenting brother would reject this standard for "those rules controlling the sale of real property”. He points specifically to the rule which precludes an action in fraud by a vendee claiming reliance on a vendor’s statement of value (Fairchild v McMahon, 139 NY 290). We note, however, that this rule is attended by a number of exceptions (24 NY Jur, Fraud and Deceit, §76). One of them involves representations made by third persons, about which it has been written, "Where the value of certain property is stated by one who apparently has no object to gain, and no motive or intention to depart from the truth, and who thus throws the representee off his guard, and exposes him to being misled, the speaker is liable in damages for the false statement” (24 NY Jur, Fraud and Deceit, § 77; see, also, 37 CJS, Fraud, § 57). If we were to adopt the rules controlling the sale of real property, the issues raised by this exception would preclude the relief sought by the third-party defendant Blake. Concur—Kupferman, Ross, Markewich and Lynch, JJ.