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Citing a disclaimer contained in Matthew Bender & Co.'s New York Landlord-Tenant Law “Tanbook,” a state appeals court has tossed out a proposed class action lawsuit alleging breach of warranty and other claims that flow from alleged “inaccuracies and omissions” found in the book.

The opinion from the Appellate Division, First Department does not address or undercut the claims of the inaccuracies and omissions, but rather knocks back the plaintiffs' claims on other bases, such as a specific disclaimer found in Bender & Co.'s terms and conditions that said, “We do not warrant the accuracy, reliability or currentness of the materials contained in the publications.”

The lawsuit, filed in 2017 by the law firm Himmelstein, McConnell, Gribben, Donoghue & Joseph and other plaintiffs, specifically alleged that for at least six years preceding 2017, the Tanbook was “rife with inaccuracies and omissions,” at least with respect to rent-regulated housing in New York City, according to the First Department's opinion. The decision from an unanimous panel addressed certain plaintiff claims while it affirmed a 2018 dismissal of the lawsuit by Manhattan Supreme Court Justice Charles Ramos.

The panel noted in the opinion that the Tanbook is a compilation of statutes, regulations and “editorial contents” that include commentaries and summaries addressing rent regulation and landlord-tenant law in New York.

The Tanbook and other Bender & Co. materials on the law are frequently found in law offices across New York.

Homing in part on the plaintiffs' breach-of-contract claim in the lawsuit, specifically on the plaintiffs' alleged breach of express warranty against Matthew Bender & Co., the panel wrote that the plaintiffs had based their warranty claim on representations that Bender & Co. made about the content of the Tanbook in the book's “Overview” and on websites on which the book was sold.

But the panel wrote that the breach-of-express warranty claim was correctly dismissed, as part of Ramos' 2018 decision, because the terms and conditions under which Bender & Co. sold the Tanbook to plaintiffs had a merger clause and a disclaimer of warranties that stated, in bold, “We do not warrant the accuracy, reliability or currentness of the materials contained in the publications.”

The panel further wrote in the May 2 decision that contrary to what the plaintiffs contended, “this is a specific, not a general, disclaimer.”

In addition, the panel of Justices Rolando Acosta, David Friedman, Sallie Manzanet-Daniels, Ellen Gesmer and Anil Singh said the plaintiffs' complaint failed to “allege that plaintiffs relied on the statements that they contend constitute an express warranty.”

“Although this defect was cured with respect to plaintiff law firm by Samuel J. Himmelstein's affidavit in opposition, it was not cured with respect to the other plaintiffs,” the justices wrote.

Addressing another aspect of the plaintiffs' complaint, the justices said “the disclaimer of warranties also precludes the claim for breach of the implied covenant of good faith and fair dealing, which in any event is duplicative of the breach of contract claim.”

The justices also noted that “plaintiffs identified no contractual provisions that required defendant [Bender & Co.] to update the 2016 edition of the book, notify publishers of errors in it, or issue the 2017 edition sooner that it did.”

Next, in taking up the plaintiffs' claim for violation of state General Business Law § 349, the panel wrote in part that it had been “correctly dismissed because the only injury alleged to have resulted from defendant's allegedly deceptive business practices is the amount that plaintiffs paid for the book, which does not constitute an injury cognizable under the statute.”

The justices also wrote that they were not reaching “plaintiffs' argument, raised for the first time in their appellate reply brief, that defendant's representations as to the contents of the book constitute a fraud.”

According to court records, the lawsuit was lodged in 2017 by Himmelstein McConnell, along with nonprofit Housing Court Answers and Michael McKee, whom Justice Ramos described in his 2018 dismissal decision as “a New York tenant advocate and organizer who serves as a volunteer at various tenant advocacy organizations.”

Justice Ramos addressed in his opinion various claims that also included a claim for fraud and one for unjust enrichment. He dismissed each of the claims addressed and dismissed the lawsuit in its entirety in his opinion.

Jeffrey Glen, an Anderson Kill shareholder in New York, represented the plaintiffs in the appeal and declined to comment.

James Fishman of Fishman Rozen in New York also represented the plaintiffs and couldn't be reached.

Anthony Dreyer, a partner at Skadden, Arps, Slate, Meagher & Flom, who represented Matthew & Bender Co. Inc.—which is a member of LexisNexis Group, Inc., according to the caption on the panel's opinion—declined to comment.