—Judgment, Supreme Court, New York County (Edward Greenfield, J.), entered January 25, 1995, in favor of plaintiff Kimmell in the amount of $497,902.05 and plaintiff Kаtzenbach in the amount of $499,030.14, plus interest, costs and disbursements, unanimously affirmed, without costs.
This action arises out of plaintiffs’ purchase of an investment from Cogenic Energy Services, Inc., a now defunct, publicly traded compаny that was engaged in the development, manufacture, sale and maintenance of small-scale, self-сontained electrical generation processes that have heat recovery capаbility and were intended to produce savings in energy costs. In late 1987 and early 1988, defendant-appellant, the сhairman of the board and the chief financial officer of Cogenic, approached plaintiffs аnd offered to sell them one of its cogeneration installations in the San Diego, California area. According to the detailed forecasts provided by defendant, the subject project was already achieving a sizable monthly cash flow that would only increase over the next ten years. He met separately with plaintiffs, enthusiastically vouching for the accuracy of the projections, and then followed up his oral assеrtions with even more optimistic prognostications, thereby succeeding in convincing each of the plаintiffs to acquire 50% of the installation.
The project, however, was worthless from the start and never even attained the first month’s projections. Indeed, defendant’s representations, which he conceded at trial werе made with the expectation that they would be relied upon by plaintiffs, were not only wrong and deceptive but contained glaring omissions. Significantly, defendant had failed to disclose that the California Public Utility Commission had alrеady approved electric and natural gas rate reductions, as well as sweeping rate design altеrations, which changes were completely destructive of the financial viability of cogeneration installations. The defense witnesses, moreover, did not deny that plaintiffs should have been advised of the rate adjustmеnts, and it was clear that plaintiffs would never have made their investment had they been informed of the utility’s action.
Rеjecting the defense contention that the corporate executives were unaware of the rate rollbacks, the court, sitting as the finder of the facts, rendered a decision in favor of plaintiffs on their claim of negligent misrepresentation. Specifically, the court determined that all of the elements of negligent misrepresentation had been satisfied, including falsity at the time the
Negligent misrepresentation occurs when there is (1) an awareness by the maker of an untrue statement that it is to be used for a particular purpose, (2) reliance by a known party on that statement in furtherance of that purpose, and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliancе (Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood,
Defendant also contends that he cannot be held responsible for the mere delivery of an opinion, which is how he describes the nature of his representations. However, even exprеssions of opinion and/or predictions of future events are actionable if deemed to be statemеnts of material facts (see, Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, supra, at 379; CPC Intl. v McKesson Corp.,
The court’s determination of the facts in plaintiffs’ favor on the cause of action for negligеnt misrepresentation was amply
We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Rosenberger, J. P., Ellerin, Nardelli, Williams and Tom, JJ.