Sowinski v. Cortelle Corp.

Appellate Division of the Supreme Court of New York

Sowinski v. Cortelle Corp.

44 A.D.2d 838, 355 N.Y.S.2d 471, 1974 N.Y. App. Div. LEXIS 5043

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

DecidedMay 13, 1974

StatusPublished

Cited by3 cases

This text of 44 A.D.2d 838 (Sowinski v. Cortelle Corp.) 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.

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Sowinski v. Cortelle Corp., 44 A.D.2d 838, 355 N.Y.S.2d 471, 1974 N.Y. App. Div. LEXIS 5043 (N.Y. Ct. App. 1974).

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Opinion

Appeal by defendants other than Jay Kapin from a judgment of the Supreme Court, Nassau County, entered October 5, 1972, which, after a nonjury trial, inter alia adjudged that a certain deed to certain real property is a mortgage. Judgment affirmed, with costs. No opinion. Latham, Acting P. J., Brennan and Benjamin, JJ., concur; Cohalan, J., concurs, with the following memorandum, in which Munder, J., concurs: I concur for affirmance upon the ground the record substantiates that appellant Berlin, both individually and acting on behalf of Westnau Land Corp., agreed to and admittedly did offer to execute a deed of reconveyance to plaintiffs. But I do not agree that plaintiffs were the victims of fraud. They could not very well have been defrauded, when, as in this instance, they were told by their own attorney that, in the absence of a clause in the contract granting them an option to repurchase, the oral agreement to reeonvey would be unenforceable. For, as noted in New York Jurisprudence (vol. 24, Fraud and Deceit, § 163, pp. 230-231), " one is not entitled to relief on the ground of false representations where, instead of relying upon them, he resorts to other means of knowledge or information, as where he relies * * * or upon an investigation made by his own lawyer”. (See Re v. Diamond, 249 App. Div. 781, affd. 274 N. Y. 606; Zuyder Zee Land Corp. v. Broadmain Bldg. Co., 86 N. Y. S. 2d 827, affd. 276 App. Div. 751.)

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Appeal by defendants other than Jay Kapin from a judgment of the Supreme Court, Nassau County, entered October 5, 1972, which, after a nonjury trial, inter alia adjudged that a certain deed to certain real property is a mortgage. Judgment affirmed, with costs. No opinion. Latham, Acting P. J., Brennan and Benjamin, JJ., concur; Cohalan, J., concurs, with the following memorandum, in which Munder, J., concurs: I concur for affirmance upon the ground the record substantiates that appellant Berlin, both individually and acting on behalf of Westnau Land Corp., agreed to and admittedly did offer to execute a deed of reconveyance to plaintiffs. But I do not agree that plaintiffs were the victims of fraud. They could not very well have been defrauded, when, as in this instance, they were told by their own attorney that, in the absence of a clause in the contract granting them an option to repurchase, the oral agreement to reeonvey would be unenforceable. For, as noted in New York Jurisprudence (vol. 24, Fraud and Deceit, § 163, pp. 230-231), " one is not entitled to relief on the ground of false representations where, instead of relying upon them, he resorts to other means of knowledge or information, as where he relies * * * or upon an investigation made by his own lawyer”. (See Re v. Diamond, 249 App. Div. 781, affd. 274 N. Y. 606; Zuyder Zee Land Corp. v. Broadmain Bldg. Co., 86 N. Y. S. 2d 827, affd. 276 App. Div. 751.)

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44 A.D.2d 838, 355 N.Y.S.2d 471, 1974 N.Y. App. Div. LEXIS 5043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sowinski-v-cortelle-corp-nyappdiv-1974.

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