Opinion
October 20, 1970
Order entered April 24, 1970, unanimously modified on the law to dismiss the second alleged cause of action, and otherwise affirmed, without costs and without disbursements. The disclaimer clause contained in the written contract of sale renders insupportable the said second cause of action framed to recover damages for alleged fraudulent misrepresentations inducing the purchase of an apartment development. The plain and unambiguous wording of the disclaimer clause precludes the plaintiff (purchaser) from claiming that it entered into the contract in reliance on fraudulent representations of the defendant's (seller) intent at the time of the sale. As a matter of fact, the purchaser eschews any claim of oral misrepresentations and, in any event, it expressly covenanted that, in arriving at the decision to purchase, it did not rely upon any representations or statements by seller excepting those embodied in the contract. The particular representations set forth in the contract and allegedly relied on by the purchaser as the basis for its second cause of action are in truth nothing more than contractual undertakings on the part of the seller. By virtue of the wording of the clause, the purchaser is conclusively deemed to have relied upon such contractual undertakings in their expressed and legal import and to have accepted them as the limit of the seller responsibility. The purchaser may not properly claim that these contractual undertakings may be broadened into misrepresentations of the seller's intent. The purchaser, in accordance with the wording and intent of the disclaimer clause, is properly to be relegated to the appropriate remedy for the alleged breach of the contractual undertakings as set forth in its first cause of action. If the language used in this specific disclaimer is held not to sufficiently estop the purchaser from claiming that it entered into the contract because of fraudulent misrepresentations of the seller's intent, then no language can accomplish that purpose. "To hold otherwise would be to say that it is impossible for two businessmen dealing at arm's length to agree that the buyer is not buying in reliance on any representations of the seller as to a particular fact." ( Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 323; see, also, Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136.)
Concur — Eager, J.P., Capozzoli, McGivern and Markewich, JJ.