Auchincloss v. Allen, 621 N.Y.S.2d 305

Auchincloss v. Allen

621 N.Y.S.2d 305

N.Y. App. Div.

1995

Check Treatment

Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 24, 1993, which granted plaintiffs’ motion for partial summary judgment on the complaint, and judgment entered thereon, same court and Justice, entered July 12, 1993, in the amount of $57,071.25, unanimously affirmed, without costs.

Defendant failed to allege any material misrepresentation of existing fact which would support a claim of fraud (see, Lane v McCallion, 166 AD2d 688, 690). The existence of other litigation challenging this zoning ordinance (One Beekman Place v City of New York, 169 AD2d 492) was a matter of public knowledge which defendant could have discovered through the exercise of ordinary diligence had he made inquiry at the appropriate time (see, 88 Blue Corp. v Reiss Plaza Assocs., 183 AD2d 662, 664). Plaintiffs, in any event, had no duty to disclose the existence of the ongoing litigation as there was no fiduciary or confidential relationship between the parties (see, Lane v McCallion, supra, at 691). We additionally find that the motion court did not abuse its discretion in declining to award sanctions. Concur—Asch, J. P., Rubin, Nardelli and Tom, JJ.