Practice point: After purchasing a pair of sneakers, plaintiff
was asked to show the receipt before exiting Defendant's store. Store security
advised him that it was store policy to check customers' receipts and he
would not be permitted to leave without complying. Plaintiff refused and contacted the police. The
police arrived and instructed plaintiff to produce the receipt and when
he did, he was permitted to leave.
In pleading fraud, plaintiff alleged that defendant knowingly made a materially false statement that it was store
policy for customers to show their receipts before departing the store.
Plaintiff stated that defendant's employee made the statement to induce
him to rely upon it and surrender his rights not to present the receipt.
The Appellate Division affirmed the dismissal of the claim, finding that plaintiff does not have 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. Therefore, a necessary element of a fraud claim, namely, justifiable reliance upon a false statement, has been negated.
Student note: The Appellate Division determined that the negligent misrepresentation claim fails because plaintiff did not plead any special duty owed to him by defendant. Such a duty is a necessary element of a viable claim.
Case: Bishop v. Henry Modell & Co., Inc., NY Slip 01980 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: CPLR 3211 and the single motion rule.
