Basis Pac-Rim Opportunity Fund (Master) v. TCW Asset Mgt. Co. ( 2015 )

Basis Pac-Rim Opportunity Fund (Master) v TCW Asset Mgt. Co. (2015 NY Slip Op 00640)

Basis Pac-Rim Opportunity Fund (Master) v TCW Asset Mgt. Co.

2015 NY Slip Op 00640

Decided on January 27, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 27, 2015
Mazzarelli, J.P., Renwick, DeGrasse, Richter, Clark, JJ.

654033/12 14053 14052

[*1] Basis Pac-Rim Opportunity Fund (Master), et al., Plaintiffs-Appellants,

v

TCW Asset Management Company, Defendant-Respondent.

Lewis Baach PLLC, New York (Bruce R. Grace of counsel), for appellants.

Gibson Dunn and Crutcher LLP, New York (Christopher M. Joralemon and Peter M. Wade of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about September 10, 2013, which, to the extent appealed from, granted defendant's motion to dismiss the cause of action for negligent misrepresentation, unanimously affirmed, with costs. Order, same court and Justice, entered on or about December 3, 2013, which, to the extent appealed from, denied plaintiffs' motion to renew, unanimously affirmed, with costs.

The motion court properly dismissed the negligent misrepresentation cause of action since plaintiffs failed to establish the existence of a special relationship of trust or confidence between the parties required to support such a cause of action (see Zohar CDO 2003-1 Ltd. v Xinhua Sports & Entertainment Ltd., 111 AD3d 578, 579 [1st Dept 2013]; MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 297 [1st Dept 2011]). Contrary to plaintiffs' assertions, the involvement of a collateral manager in an arm's length transaction does not establish a special relationship as a matter of law (see Zohar CDO 2003-1 Ltd., 111 AD3d at 579). Here, the sophisticated parties entered into an arm's length transaction which precludes a finding of a special relationship.

In addition, the motion court properly denied plaintiffs' motion to renew since it was not [*2]"based upon new facts not offered on the prior motion" and did not "demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2015

CLERK