Weissv.Shapolsky

Appellate Division of the Supreme Court of New York, Second DepartmentMay 21, 1990
161 A.D.2d 707 (N.Y. App. Div. 1990)
161 A.D.2d 707555 N.Y.S.2d 843

May 21, 1990

Appeal from the Supreme Court, Kings County (Dowd, J.).


Ordered that the appeals from the orders dated November 21, 1988, and April 14, 1989, respectively, are dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated July 25, 1988, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiff argues that he is entitled to the return of his down payment which was deposited in escrow pursuant to a contract for the purchase of real estate, on the ground that the defendants made certain misrepresentations which fraudulently induced him to enter into the contract. We disagree.

While a general merger clause is ineffective to exclude parol evidence of fraud in the inducement, a "specific disclaimer destroys the allegations in plaintiff's complaint that the agreement was executed in reliance upon these contrary oral [mis]representations" (Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320-321; see also, Citibank v. Plapinger, 66 N.Y.2d 90; Superior Realty Corp. v. Cardiff Realty, 126 A.D.2d 633). Here, the contract contained merger clauses which provided that the purchaser was not relying on any representations about the property's physical condition not specifically contained in the contract, that the purchaser had inspected the premises and was thoroughly acquainted with its condition, and that the purchaser agreed to take the premises "as is". Such clauses are sufficiently specific to bar the plaintiff from claiming that he was fraudulently induced into entering the contract because of oral misrepresentations about the property's physical condition (see, Mayer v. Rabinowitz, 114 A.D.2d 357; Barnes v. Gould, 83 A.D.2d 900, affd 55 N.Y.2d 943). Similarly, another merger clause was sufficiently specific to bar the plaintiff from alleging he was induced into entering the contract through oral misrepresentations about the current tenant.

We also reject the plaintiff's argument that the facts allegedly misrepresented were peculiarly within the defendants' knowledge (see, Superior Realty Corp. v. Cardiff Realty, supra; Barnes v. Gould, supra; see generally, Yurish v. Sportini, 123 A.D.2d 760, 761-762). Further, we find that the court properly directed an assessment for determining reasonable counsel fees to be awarded to the defendants, as that direction was in accordance with the unambiguous terms of the contract.

We have considered the plaintiff's remaining contentions and find them to be without merit. Kooper, J.P., Sullivan, Harwood and Balletta, JJ., concur.