DuBow v. Century Realty, Inc.

2019 NY Slip Op 4116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 2019
• Docket: 656016/17 -9457 9456 9455
• Status: Published

Opinion

DuBow v Century Realty, Inc. (2019 NY Slip Op 04116)

DuBow v Century Realty, Inc.

2019 NY Slip Op 04116

Decided on May 28, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 28, 2019
Sweeny, J.P., Richter, Kapnick, Oing, Singh, JJ.

656016/17 -9457 9456 9455

[*1]Kenneth DuBow, Plaintiff-Appellant,

v

Century Realty, Inc., et al., Defendants-Respondents.

Peter M. Levine, New York, for appellant.

Proskauer Rose LLP, New York (Peter J. W. Sherwin of counsel), for respondents.

Orders, Supreme Court, New York County (Eileen Bransten, J.), entered March 6, 2018 and June 28, 2018 which, inter alia, collectively dismissed the entirety of the complaint, unanimously affirmed, with costs.

Given the "no representations" clause and the other language of the integration clause in a settlement agreement negotiated by the parties (Settlement Agreement), the court correctly dismissed the fraudulent inducement claim, which was based on an alleged promise that defendants would pay the tax liability for the loan to plaintiff they were forgiving (see Pate v BNY Mellon-Alcentra Mezzanine III, LP, 163 AD3d 429, 430 [1st Dept 2018]; WT Holdings Inc. v Argonaut Group, Inc., 127 AD3d 544 [1st Dept 2015]).

Plaintiff's argument, raised for the first time on appeal, that the settlement agreement is actually an executory accord, rather than a substitute agreement, is directly contradicted by the express language of the Settlement Agreement, which states that it "constitutes the complete understanding between them and supersedes any and all agreements, understandings, and discussions, whether written or oral, between them with respect to the subject matter herein" (see Wyckoff v Searle Holdings, Inc., 111 AD3d 546, 546-547 [1st Dept 2013]).

Plaintiff's Labor Law claim was properly dismissed as released by the terms of the Settlement Agreement.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2019

CLERK