McGowan v. Winant Place Associates

270 A.D.2d 466, 705 N.Y.S.2d 294, 2000 N.Y. App. Div. LEXIS 3206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2000
• Status: Published

Opinion

—In an action to recover damages for fraud, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Richmond County (Cusick, J.), entered March 15, 1999, which, upon granting the defendants’ motion for summary judgment dismissing the complaint, is in favor of the defendants and against them in the principal sum of $127,750 on the counterclaim.

Ordered that the order and judgment is affirmed, with costs.

The defendants alleged in their counterclaim that the plaintiffs defaulted on a mortgage note which they executed on January 7, 1988, in connection with their purchase of the defendants’ real property. In defense thereto, the plaintiffs relied upon the assertion set forth in their complaint that the defendants fraudulently induced them to purchase the property.

“While it is true that a general merger clause is ineffective to exclude parol evidence of fraud in the inducement, a specific disclaimer defeats any allegation that the contract was executed in reliance upon the representations to the contrary” (Taormina v Hibsher, 215 AD2d 549; see, Couch v Schmidt, 204 AD2d 951). Here, the contract of sale was sufficiently specific to bar the plaintiffs’ allegation that they were induced to enter into it by oral misrepresentations regarding the status of the property (see, Taormina v Hibsher, supra).

The plaintiffs’ remaining contention is without merit. Bracken, J. P., Joy, Goldstein and Feuerstein, JJ., concur.