Plaintiff, Persephone Dacosta was a tenant in a warehouse located at 2 Prince Street in Brooklyn. Plaintiff operated a recording studio at the location. A neighboring tenant, Vado Diomande ("Diomande"), used his space in the warehouse to fashion drums from animal hides. When Diomande contracted anthrax, apparently from a hide he was working with, plaintiff's recording studio was tested and found to be contaminated.

Defendant Tradewinds Environmental Restoration Inc., ("Tradewinds"), was retained by co-defendants FBE Prince Street, LLC, Pinnacle Self Storage, LLC, Philrub Realty Corporation to remediate the premises, including plaintiff's recording studio. Plaintiff commenced this action alleging that, as a result of the remediation, her recording studio was unnecessarily destroyed and that property was stolen. Defendants Tradewinds, FBE Prince Street, LLC, Pinnacle Self Storage, LLC, Philrub Realty Corporation move to dismiss the third cause of action which alleges strict liability and the tenth cause of action which alleges negligent misrepresentations.

Section 519 of the Restatement of Torts Second states:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity,

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Movants argue that the kind of harm that makes anthrax remediation abnormally dangerous is the risk of contamination from or, the contraction of, anthrax. Plaintiff concedes that her damages were not caused by anthrax exposure. However, plaintiff argues that hazardous substances were used to remediate the anthrax condition and that those hazardous substances caused her damages. Plaintiff alleges that the movants are strictly liable for the use of these hazardous substances. However, the complaint fails to allege the use of any abnormally dangerous chemicals. Accordingly, the third cause of action is dismissed.

In order to establish a claim of negligent misrepresentation, a plaintiff must establish a special relationship between the parties that gives rise to a duty to use reasonable care to impart correct information, that the information was incorrect or false and, that the plaintiff reasonably relied upon the information provided (see, Pappas v. Harrow Stores, 140 AD2d 501, 504, 528 NYS2d 404). The misrepresentations must be of existing facts, not future expectations (see, Country-Wide Leasing Corp. v. Subaru of Am., 133 AD2d 735, 736, lv. denied 70 NY2d 615). However, the misrepresentation of a party's present intention may be considered the misrepresentation of an existing fact (see, Channel Master Corporation v. Aluminum Limited Sales, Inc., 4 NY2d 403, 406-407).

In this case, the allegations contained in the complaint refer only to future conduct and not any existing facts, including the movants' intentions. Accordingly, the tenth cause of action is dismissed.

The motion and cross motion are, therefore, granted, and the third and tenth causes of action are dismissed.

This shall constitute the Decision and Order of the Court.

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J.S.C.