S & A Realty Management Corp. v. Prestigiacomo

306 A.D.2d 339, 760 N.Y.S.2d 663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for misrepresentation, the defendants Senack Realty and Robert Spigner appeal from an order of the Supreme Court, Kings County (Hubsher, J.), dated January 29, 2002, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The plaintiff S & A Realty Management Corp. (hereinafter S & A Realty) purchased a residential building from the defendants Mario Prestigiacomo and 1077 President St. Corp. The defendants Senack Realty and Robert Spigner were the real estate agents for the sellers. S & A Realty alleges that the agents, inter alia, misrepresented the rental income of the property.

The Supreme Court properly determined that the agents Senack Realty and Spigner failed to establish their entitlement to judgment as a matter of law dismissing the causes of action alleging fraudulent and negligent misrepresentation (see Wine-grad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). Although a specific written disclaimer will vitiate an allegation that one party reasonably relied on alleged misrepresentations by another party (see Citibank v Plapinger, 66 NY2d 90, 94-95 [1985] ; Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]; CFJ Assoc. of N.Y. v Hanson Indus., 274 AD2d 892, 894 [2000]; Cohan v Sicular, 214 AD2d 637, 638 [1995]), the disclaimer on the Senack Realty listing sheet did not extend to cover the information contained in any and all documents given to S & A Realty. The disclaimer was not broadly worded; it provided that no representation was made of “the figures set forth herein” (emphasis supplied).

Furthermore, S & A Realty’s principal asserted that he relied on oral statements by Senack Realty’s principal, Gary Senack, and by Robert Spigner, regarding the rental income of the subject property, as well as statements made by Gary Senack as to the reliability of the seller’s paperwork. The disclaimer contained in the listing sheet is devoid of any express statement that S & A Realty was not relying upon any oral representations concerning the rental income on the property (cf. Danann Realty Corp. v Harris, supra). A triable issue of fact was created by Senack and Spigner’s denial of making any such statements (see Black v Chittenden, 69 NY2d 665, 669 [1986]; Cohan v Sicular, supra at 639; cf. Hauser v Lista, 201 AD2d 873, 874 [1994]).

The remaining contentions of Senack Realty and Robert Spigner similarly present credibility issues not properly resolved on a motion for summary judgment (see Capelin Assoc. v Globe Mfg. Corp., supra). Smith, J.P., S. Miller, Crane and Cozier, JJ., concur.