Colgate Scaffolding & Equip. Corp. v Albrecht, Viggiano, Zureck & Co., P.C.

Colgate Scaffolding & Equip. Corp. v Albrecht, Viggiano, Zureck & Co., P.C. 2013 NY Slip Op 01005 Decided on February 14, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2013
Mazzarelli, J.P., Friedman, Manzanet-Daniels, Román, Clark, JJ.
306283/11

[*1]9251 Colgate Scaffolding & Equipment Corp., Plaintiff-Appellant,

v

Albrecht, Viggiano, Zureck & Company, P.C., doing business as AVZ Tech, Defendant, Microsoft Corporation, Defendant-Respondent.




Terrence O'Connor, P.C., Bronx (Terrence J. O'Connor of
counsel), for appellant.
Orrick, Herrington & Sutcliffe LLP, New York (Lisa T.
Simpson of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered March 26, 2012, which granted defendant Microsoft Corporation's motion to dismiss the complaint as against it, unanimously affirmed, without costs.

The complaint fails to state a cause of action for negligent misrepresentation as against Microsoft. There is no indication that Microsoft knew that plaintiff was considering the purchase of Microsoft products and related services from defendant Albrecht, Viggiano, Zureck & Company, P.C. d/b/a AVZ Tech (AVZ), or even knew of plaintiff's existence, when it made the alleged misrepresentation about the qualifications of AVZ (see Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 373 [2010]). Plaintiff's allegation that it had relied on AVZ's repetition of the same misrepresentation in AVZ's proposal of a contract between AVZ and plaintiff does not establish privity, or a relationship approaching privity, between Microsoft and plaintiff at the time Microsoft made the alleged misrepresentation (see Westpac Banking Corp. v Deschamps, 66 NY2d 16, 19 [1985]). Likewise, plaintiff's argument that it had become a customer of Microsoft [*2]subsequent to the alleged reliance on the misrepresentation does not establish that Microsoft made the misrepresentation to plaintiff as a known party (see McGill v General Motors Corp., 231 AD2d 449, 450 [1st Dept 1996]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2013

CLERK