Osuchowski v. Gallinger Real Estate

Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action seeking damages arising from his purchase of real estate at an auction conducted by defendant. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. A triable issue of fact at least arguably exists whether defendant was negligent in conducting the auction 893 and whether its agent made negligent misrepresentations to plaintiff during the auction (see generally, Hourigan v McGarry, 106 AD2d 845, 845-846, appeal dismissed 65 NY2d 637). We reject defendant’s contention that, as a matter of law, a claim for negligent misrepresentation does not lie because the parties were not in privity and did not have a special relationship; “there may be liability for negligent misrepresentation where there is a relationship between the parties such that there is an awareness that the information provided is to be relied upon for a particular purpose by a known party in furtherance of that purpose, and some conduct by the declarant linking it to the relying party and evincing the declarant’s understanding of [the] reliance” (Houlihan/Lawrence, Inc. v Duval, 228 AD2d 560, 561). (Appeal from Order of Supreme Court, Onondaga County, Tormey, III, J. — Summary Judgment.) Present— Green, J. P., Wisner, Kehoe and Lawton, JJ.