TRIBUNE PRINTING CO. v. 263 NINTH AVENUE REALTY

MEMORANDUM.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division, except that, contrary to the statement in said memorandum, a representation which is promissory in nature may constitute a misrepresentation of an existing fact. ( Adams v Gillig, 199 N.Y. 314.) The correct rule provides that a false statement, promissory in nature, "may be deemed the statement of a material existing fact, because it falsely represents the [declarant's] state of mind and the state of his mind is a fact." ( Deyo v Hudson, 225 N.Y. 602, 612; see, also, Rudman v Cowles Communications, 30 N.Y.2d 1, 9; Adams v Clark, 239 N.Y. 403.) An affirmance on this point is required, however, because plaintiff has failed to proffer evidence sufficient to raise a triable issue of fact with respect to its claimed reliance on defendants' alleged fraudulent representation.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Judge MEYER taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, in a memorandum.