Opinion
May 27, 1999
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
On the prior appeal in this matter ( 209 A.D.2d 288, lv denied 85 N.Y.2d 1029), in the course of affirming the IAS Court's dismissal of defendants' counterclaim for breach of an alleged oral agreement for plaintiff to extend a loan of $2 million to defendants, we expressly rejected defendants' claim that plaintiff was estopped from asserting the Statute of Frauds as a defense to the counterclaim. We held in this connection, "[n]or would defendants be able to show the necessary element of justifiable reliance, the individual defendant as the IAS Court aptly noted, being a sophisticated real estate investor who could not have believed that plaintiff would extend a $2 million loan `on a word and a handshake' while requiring a complicated set of writings for loans in far smaller amounts" (supra, at 288). Defendants and nonparty Rondout now seek to interpose counterclaims for fraud and negligent misrepresentation premised upon the identical alleged misrepresentation by plaintiff, namely, that plaintiff would extend defendants a $2 million loan. Inasmuch as we have previously held that defendants' reliance on the alleged misrepresentation could not have been justifiable, the proposed counterclaims of defendants and nonparty Rondout, each of which entails an allegation of reasonable or justifiable reliance upon plaintiff's alleged oral promise of a $2 million loan, are not viable (see, First Natl. State Bank v. Irving Trust Co., 91 A.D.2d 543, 544, affd 59 N.Y.2d 991) and, accordingly, leave to amend was properly denied (see, Hauptman v. New York City Health Hosps. Corp., 162 A.D.2d 588, 589).
Concur — Rosenberger, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.