Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Order unanimously reversed on the law with costs and plaintiffs' motion granted. Memorandum: Plaintiffs' motion for summary judgment should have been granted. The record establishes defendants' execution and delivery of promissory notes to plaintiffs pursuant to their contract and also establishes defendants' default. Defendants respond that they were fraudulently induced to enter into the contract by plaintiffs' misrepresentation that the properties were eligible for rental subsidies. Defendants present no proof in admissible form that would support their charge of fraudulent misrepresentation (Zuckerman v City of New York, 49 N.Y.2d 557, 562; Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231). Further, it is uncontested that defendants twice attempted to insert into the purchase contract a representation that the properties were eligible for governmental rental subsidies, and each time plaintiffs objected and insisted upon its deletion. The parties initialed the deletions and entered into the contract absent this representation. Defendants' agreement to the contract under these circumstances was equivalent to an affirmative representation that no reliance was being placed upon the representation. While it is generally permissible to rely on parol evidence to establish fraud (see, Sabo v Delman, 3 N.Y.2d 155), it is not permitted in instances where, as here, a party acknowledges at the time the contract is entered into that it is not relying upon a representation and thereafter seeks to refute that statement by parol evidence (see, Citibank v Plapinger, 66 N.Y.2d 90, 94-95, rearg denied 67 N.Y.2d 647; Danann Realty Corp. v Harris, 5 N.Y.2d 317).