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Hattar Prevails on Appeal

June 1, 2015

After succeeding in moving to dismiss a complaint against the firm’s client, a sporting goods store, before the New York State Supreme Court, Bronx County, Joanna Topping (Partner-White Plains) was able to convince the Appellate Division, First Department to unanimously affirm the Supreme Court’s order. Jackie and Don prepared and argued the motion to dismiss in the Supreme Court.  Joanna prepared and argued the appeal on behalf of the firm’s client in the Appellate Division, First Department and handled the underlying federal court actions. 

After purchasing a pair of sneakers from our client’s store, the plaintiff was asked to show the receipt before exiting.  A store security guard advised the plaintiff that it was the store’s policy to check customers’ receipts and he would not be permitted to leave without complying.  The plaintiff refused and contacted the police.  The police arrived and instructed the plaintiff to produce the receipt and when he did, he was permitted to leave the store.   The plaintiff filed a complaint in the United States District Court for the Southern District of New York alleging, among other things, racial discrimination and false arrest.  Wilson Elser filed a motion to dismiss which was granted by the District Court.  The District Court order was affirmed by the Second Circuit.  The plaintiff then filed a state court complaint alleging, among other things, false arrest, breach of contract, fraud and negligent misrepresentation.  The Wilson Elser team moved to dismiss the complaint on the ground of collateral estoppel and the motion was granted.  The plaintiff then appealed alleging that the Supreme Court erred in dismissing his claims of fraud and negligent misrepresentation. 

The Appellate Division affirmed the Supreme Court’s order finding that the plaintiff failed to establish a viable claim for fraud because he refused to show his receipt to store employees, offering it only to the police when they arrived and directed him to produce it.  The Court explained that in light of this, a necessary element of a claim of fraud, namely, justifiable reliance upon a false statement, had been negated.  Additionally, the Court held that the negligent misrepresentation claim failed because the plaintiff did not plead any special duty owed by the store to him, a necessary element of a claim for negligent misrepresentation.

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