Marshall v. Gallinger Real Estate Co.

Appellate Division of the Supreme Court of New York

Marshall v. Gallinger Real Estate Co.

222 A.D.2d 1101, 635 N.Y.S.2d 851, 1995 N.Y. App. Div. LEXIS 14185

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 22, 1995

StatusPublished

This text of 222 A.D.2d 1101 (Marshall v. Gallinger Real Estate Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marshall v. Gallinger Real Estate Co., 222 A.D.2d 1101, 635 N.Y.S.2d 851, 1995 N.Y. App. Div. LEXIS 14185 (N.Y. Ct. App. 1995).

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Opinion

—Order unanimously modified on the law and as modified affirmed with costs to defendants in accordance with the following Memorandum: Supreme Court erred in denying the motions by defendants for summary judgment insofar as they sought dismissal of plaintiffs’ cause of action for breach of express warranty. The contract contains no express warranties. Parol evidence of alleged verbal warranties is inadmissible to add to the contract, which provides that it contains the entire agreement of the parties and may be modified only in writing (see, Smith v Fitzsimmons, 180 AD2d 177, 180).

The court also erred in denying defendants’ motions for summary judgment insofar as they sought dismissal of plaintiffs’ cause of action for fraudulent misrepresentation. The record establishes that defendants did not actively conceal the sagging living room ceiling that is the source of this dispute. To the contrary, plaintiffs noticed the condition when they first visited the property, and plaintiffs hired an engineer to inspect the premises. Because plaintiffs knew of the defect, their fraud cause of action cannot survive (see, George v Lumbrazo, 184 AD2d 1050, 1051, lv dismissed 81 NY2d 759).

Therefore, we modify the order on appeal by granting summary judgment to defendants dismissing the complaint in its entirety. (Appeals from Order of Supreme Court, Onondaga County, Reagan, J. — Summary Judgment.) Present — Wesley, J. P., Balio, Davis and Boehm, JJ.

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—Order unanimously modified on the law and as modified affirmed with costs to defendants in accordance with the following Memorandum: Supreme Court erred in denying the motions by defendants for summary judgment insofar as they sought dismissal of plaintiffs’ cause of action for breach of express warranty. The contract contains no express warranties. Parol evidence of alleged verbal warranties is inadmissible to add to the contract, which provides that it contains the entire agreement of the parties and may be modified only in writing (see, Smith v Fitzsimmons, 180 AD2d 177, 180).

The court also erred in denying defendants’ motions for summary judgment insofar as they sought dismissal of plaintiffs’ cause of action for fraudulent misrepresentation. The record establishes that defendants did not actively conceal the sagging living room ceiling that is the source of this dispute. To the contrary, plaintiffs noticed the condition when they first visited the property, and plaintiffs hired an engineer to inspect the premises. Because plaintiffs knew of the defect, their fraud cause of action cannot survive (see, George v Lumbrazo, 184 AD2d 1050, 1051, lv dismissed 81 NY2d 759).

Therefore, we modify the order on appeal by granting summary judgment to defendants dismissing the complaint in its entirety. (Appeals from Order of Supreme Court, Onondaga County, Reagan, J. — Summary Judgment.) Present — Wesley, J. P., Balio, Davis and Boehm, JJ.

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Bluebook (online)

222 A.D.2d 1101, 635 N.Y.S.2d 851, 1995 N.Y. App. Div. LEXIS 14185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-gallinger-real-estate-co-nyappdiv-1995.

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