Schwartz v. Ross

Appellate Division of the Supreme Court of New York

Schwartz v. Ross

233 A.D.2d 229, 650 N.Y.S.2d 534, 1996 N.Y. App. Div. LEXIS 12009

Appellate Division of the Supreme Court of the State of New York·Decided November 21, 1996·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New [230] York County (Ira Gammerman, J.), entered June 23, 1995, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly granted defendants summary judgment since the specific disclaimer and merger clauses in the contract barred plaintiffs’ fraudulent inducement claim, which was based on defendant John Ross’ purported December 8, 1992 representation to plaintiff Eric Schwartz that the property was in "excellent condition” (see, Mahn Real Estate Corp. v Shapolsky, 178 AD2d 383). We also note that "where, as here, a party has been put on notice of the existence of material facts * * * and he nevertheless proceeds with a transaction without * * * inserting appropriate language in the agreement for his protection, he may truly be said to have willingly assumed the business risk that the facts may not be as represented” (Rodas v Manitaras, 159 AD2d 341, 343). Concur—Sullivan, J. P., Rosenberger, Kupferman, Williams and Andrias, JJ.

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Order, Supreme Court, New [230] York County (Ira Gammerman, J.), entered June 23, 1995, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly granted defendants summary judgment since the specific disclaimer and merger clauses in the contract barred plaintiffs’ fraudulent inducement claim, which was based on defendant John Ross’ purported December 8, 1992 representation to plaintiff Eric Schwartz that the property was in "excellent condition” (see, Mahn Real Estate Corp. v Shapolsky, 178 AD2d 383). We also note that "where, as here, a party has been put on notice of the existence of material facts * * * and he nevertheless proceeds with a transaction without * * * inserting appropriate language in the agreement for his protection, he may truly be said to have willingly assumed the business risk that the facts may not be as represented” (Rodas v Manitaras, 159 AD2d 341, 343). Concur—Sullivan, J. P., Rosenberger, Kupferman, Williams and Andrias, JJ.

Schwartz v. Ross, 233 A.D.2d 229, 650 N.Y.S.2d 534, 1996 N.Y. App. Div. LEXIS 12009 (N.Y. Ct. App. 1996).

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Opinion

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