Opinion
June 7, 1991
Appeal from the Supreme Court, Livingston County, Cicoria, J.
Present — Doerr, J.P., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously affirmed with costs. Memorandum: The judgment of Supreme Court should be affirmed. Defendant argues that the contract of sale merged into the deed. That issue was not raised in the trial court and, therefore, is not preserved for our review. In any event, the doctrine of merger does not apply.
Defendant agreed to convey property sufficient to enable plaintiffs to park four cars. The parties agreed that an area of 20 by 40 feet was adequate and the contract of sale described the property by those dimensions. Defendant then instructed the surveyor to measure the lot from a certain line, which included property she did not own. Defendant knew she did not own all the property and was aware that plaintiffs would not receive the full 20 by 40 feet contracted for. Defendant's actions were tantamount to fraud and, for this reason, the contract was not merged into the deed (see, Lawlor v Engley, 166 A.D.2d 799; Sherman Partners Assocs. v 272 Sherman Assocs., 160 A.D.2d 992; Snyder v Potter, 134 A.D.2d 664; Welch v Shiffman, 101 A.D.2d 948, lv denied 63 N.Y.2d 609).