Hellinger v. Abeles

283 A.D. 726, 128 N.Y.S.2d 574, 1954 N.Y. App. Div. LEXIS 5084

Opinion

In an action to recover damages for alleged fraudulent representations as to the condition of a house purchased by the plaintiff from the defendants, the latter appeal from an order denying their motion for summary judgment and granting plaintiff’s motion to dismiss a defense of estoppel. Order affirmed, with $10 costs and disbursements. Wenzel, MacCrate, Schmidt and Beldoek, JJ., concur; Adel, Acting P. J., dissents and votes to reverse the order, to grant defendants’ motion for summary judgment, and to deny plaintiff’s cross motion to dismiss the affirmative defense pleaded in the answer, with the following memorandum: The language in the “ as is ” paragraph of the contract is clear and unambiguous. Plaintiff was represented by an attorney at the time of the making of the contract. He should not be permitted at this time to vary the written contract by proof of oral representations when the writing states that there were no such representations. [See post, p. 815.]