Opinion
November 10, 1986
Appeal from the Supreme Court, Westchester County (Lange, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's second and third counterclaims, and substituting therefor a provision granting those branches of the motion. As so modified, the order is affirmed, without costs or disbursements.
The plaintiff brought this action to recover payments due under an agreement with the defendant for the lease of computer equipment. The defendant interposed counterclaims for damages due to the plaintiff's alleged breach of the lease and a prior maintenance agreement and for damages based on fraud and negligent misrepresentation in the inducement of the contract. Special Term denied the plaintiff's motion and determined that there were issues of fact as to whether representations were made to the defendant's president and as to whether these statements created a relationship of confidence between the parties.
The counterclaims to recover damages for fraud and negligent misrepresentation should be dismissed. The lease expressly disclaims any warranty as to merchantability or fitness for a particular purpose and any representation as to capacity, suitability for use or performance. Since the disclaimer specifically covers the subject of the alleged representations, the defendant's claim of reliance is negated, and it is precluded from presenting evidence to show fraud in the inducement of the contract (see, Danann Realty Corp. v Harris, 5 N.Y.2d 317; see also, Citibank v Plapinger, 66 N.Y.2d 90, rearg denied 67 N.Y.2d 647). Similarly, the disclaimer would defeat the defendant's claim to recover damages for negligent representation, even if the defendant had met its burden of presenting sufficient facts to show that a special relationship existed between the parties (see, Dorsey Prods. Corp. v United States Rubber Co., 21 A.D.2d 866, affd 16 N.Y.2d 925, rearg denied 16 N.Y.2d 1082). In any case, the defendant failed to allege facts sufficient to raise a triable issue of fact on its claims to recover damages for fraud and negligent misrepresentation but instead offered only the vague allegations that the plaintiff's marketing representatives had made false statements as to the quality of its product (see, Zuckerman v City of New York, 49 N.Y.2d 557).
The denial of partial summary judgment dismissing that portion of the defendant's first counterclaim involving an alleged breach of the maintenance agreement was proper as triable issues of fact exist with respect to it. Thompson, J.P., Bracken, Eiber and Spatt, JJ., concur.