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The Chelsea v. Seventh Chelsea Assoc

Appellate Division of the Supreme Court of New York, First Department
Apr 29, 2003
304 A.D.2d 498 (N.Y. App. Div. 2003)

Opinion

959, 960

April 29, 2003.

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about April 5, 2002, which, to the extent appealed from as limited by the brief, granted the motion of defendant Seventh Chelsea Associates, LLC, to dismiss the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered June 13, 2002, denying plaintiff's motion for reargument, unanimously dismissed, without costs, as no appeal lies from the denial of reargument.

Philip A. Byler, for plaintiff-appellant.

Jeffrey Turkel, for defendant-respondent.

Before: Nardelli, J.P., Andrias, Sullivan, Rosenberger, Wallach, JJ.


The limitation of remedies clause in the parties' agreement, which restricted plaintiff buyer's remedies to cancellation of the contract, specific performance or closing without reduction or abatement in the purchase price, precluded plaintiff from closing and then seeking monetary damages for breach of contract (see Chock 336 B'way Operating, Inc. v. Comanche Props., 163 A.D.2d 36, 39, lv denied 77 N.Y.2d 802). Plaintiff's cause of action for fraudulent misrepresentation is merely a restatement of its contract claim, and, in any event, any claim by plaintiff of reasonable reliance on representations by defendant is fatally undermined by plaintiff's admission that it discovered all the material facts prior to electing to close (see Bank Leumi Trust Co. of New York v. D'Evori Intl., 163 A.D.2d 26, 31-32). Plaintiff's arguments concerning equitable estoppel and public policy are unpreserved, but were we to reach them we would find them to be without merit. Plaintiff's claim for economic duress in connection with its agreement to pay $150,000 to extend the closing deadline was improperly asserted in a cause of action seeking money damages and in any case insufficiently particularized. Moreover, the release plaintiff signed on the adjourned closing date expressly applied to the extension payment and all claims arising out of the closing of the sale, and therefore barred plaintiff's current claims (see Booth v. 3669 Delaware, Inc., 92 N.Y.2d 934).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

The Chelsea v. Seventh Chelsea Assoc

Appellate Division of the Supreme Court of New York, First Department
Apr 29, 2003
304 A.D.2d 498 (N.Y. App. Div. 2003)
Case details for

The Chelsea v. Seventh Chelsea Assoc

Case Details

Full title:THE CHELSEA, LLC, Plaintiff-Appellant, v. SEVENTH CHELSEA ASSOCIATES, LLC…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 29, 2003

Citations

304 A.D.2d 498 (N.Y. App. Div. 2003)
759 N.Y.S.2d 48

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