Opinion
October 13, 1961
Harry N. Borsher for plaintiffs.
Oshlag Stone for defendant.
This motion to dismiss each of the two causes of action of the complaint as insufficient is granted.
The plaintiffs on July 31, 1959 contracted to purchase a model house on premises located at 482 Island Avenue, Woodmere, New York. Damages for certain defects in the premises are sought. In each cause of action it is alleged that misrepresentations were made by the defendant's agents as to the construction or condition of the building.
A copy of the contract annexed to the complaint reveals (1) in paragraph 28 thereof that the purchasers agreed they were not relying upon any representations made by the seller which were not included in the written contract, and (2) in the second paragraph to the second rider that the purchasers agreed "to take the premises `as is'". These provisions are similar to those discussed in Danann Realty Corp. v. Harris ( 5 N.Y.2d 317) and Wittenberg v. Robinov ( 9 N.Y.2d 261). In view of the holding in those authorities barring proof of oral representations, it must be held in this action that such proof would be also inadmissible.