Sherman Partners Associates v. 272 Sherman Associates

160 A.D.2d 992, 554 N.Y.S.2d 936, 1990 N.Y. App. Div. LEXIS 5009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1990
• Status: Published

Opinion

In an action to recover damages for fraud and breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated January 24, 1989, which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

The complaint adequately alleges fraud to the extent that it charges, inter alia, that the defendant knowingly misrepresented the identity of a document with the intent to deceive the plaintiff and to thereby induce the plaintiff to go forward with the closing of title with regard to the plaintiff’s purchase of certain real property from the defendant (see, Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954). Under the circumstances the defendant’s reliance on the merger doctrine is misplaced. That doctrine, which provides that prior agreements merge in the deed, is not applicable to claims based on fraud (Snyder v Potter, 134 AD2d 664, 665; see also, Caramante v Barton, 114 AD2d 680; 7 Williston, Contracts § 926, at 784-799 [3d ed 1961]). Lawrence, J. P., Eiber, Rosenblatt and Miller, JJ., concur.