On December 22, 2021, Justice Cohen of the New York County Commercial Division issued a decision in 100 & 130 Biscayne LLC v. EE NWT OM, LLC, 2021 NY Slip Op. 32775(U), dismissing a fraudulent inducement claim based on predictions, expectations and future performance, explaining:
First, Plaintiffs claims for fraudulent inducement and negligent misrepresentation fail because they are premised on subjective, non-actionable statements about predictions, expectations, or future performance. The allegation, for instance, that Defendants presented projections which turned out to be out of line with norms in the relevant market are indefinite and conclusory, and therefore not actionable. Similarly, allegations that Defendants had an undisclosed intention to not comply with the LLC Agreement, and that they misrepresented, in general terms, their own ability to perform the contract, fail to support a viable cause of action. The closest the Complaint comes to pleading misrepresentation of a material existing fact is the assertion that Talpiot falsely represented its qualifications to do business in Florida. But the Complaint does not allege any facts to support the claim that Talpiot’s representations were false when made, relying solely upon information and belief’. The Complaint also fails to specify how Talpiot’s purported lack of qualifications inhibited its performance under the contract, alleging only that upon information and belief, certain services undertaken by Talpiot under the Talpiot Management Agreement would have required Talpiot to be licensed as a real estate broker. Similarly, the allegations fail to trace some reasonable connection between the lack of qualifications, on the one hand, and Plaintiffs economic injury on the other.
(Internal quotations and citations omitted).