On January 12, 2022, Justice Masley of the New York County Commercial Division issued a decision in Frosch Intl. Travel, Inc. v. Botbol, 2022 NY Slip Op. 30216(U), holding that an employee’s pre-hiring claims of business skills could not serve as the basis for a fraud claim, explaining:
In the complaint, plaintiff alleges that defendant fraudulently induced plaintiff into entering the employment contract by misrepresenting his prior experience, ability to bring new clients to plaintiff, generating significant new business, business acumen and business connections. Plaintiff further alleges that defendant provided it with financial forecasts and financial projections, showing sales that defendant represented that he could achieve and represented that he had extensive knowledge and expertise of the New York corporate market. Plaintiff alleges that it would never have agreed to pay defendant $325,000 a year plus a $50,000 commencement bonus but for these misrepresentations.
Defendant argues the fraud claim must be dismissed because defendant’s alleged misrepresentations are nonactionable as opinion, puffery, or an intent to perform under an agreement.
Statements of opinion as to a party’s qualifications cannot form the basis for a fraudulent inducement claim. Plaintiff’s general allegations regarding defendant’s alleged misrepresentations as to his abilities to generate new business, his business skills, experience, and connections, i.e., his ability to perform and satisfy his obligation to achieve a direct sales target of $117 under paragraph 1(B) of the employment contract, are not sufficient to state a claim for fraud. These alleged misrepresentations are opinion and not objective facts. Further, defendant’s financial forecasts and financial projections, showing sales that defendant represented that he could achieve are nonactionable future promises of conduct and not present fact.
(Internal quotations and citations omitted).