In Swersky v. Dreyer and Traub (219 AD2d 321, 643 N.Y.S.2d 33 [1st Dept 1996]), the Court found that there were outstanding issues as to the disparity in the level of information available to the two parties, placing the case within the ambit of the "special facts" doctrine.

The Court questioned "whether plaintiffs could have through 'the exercise of ordinary intelligence' independently ascertained that defendant had acquired" the stockholder interests complained of in the complaint. Id. at 327.