Troiano v. Tuccio

Appellate Division of the Supreme Court of New York

Troiano v. Tuccio

227 A.D.2d 467, 643 N.Y.S.2d 157, 1996 N.Y. App. Div. LEXIS 5092

Appellate Division of the Supreme Court of the State of New York·Decided May 13, 1996·Published·Cited by 1 cases

Opinion

In an action to recover damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 9, 1995, as granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was to dismiss the complaint is denied, and the complaint is reinstated.

The language of the disclaimer provision contained in the contract of sale between the plaintiff and the seller demonstrates that the disclaimer provision did not inure to the benefit of the defendant, who was a real estate broker on the transaction and also is alleged to have fraudulently induced the plaintiff to purchase the subject property (see, Wittenberg v Robinov, 9 NY2d 261, 263-264). Accordingly, the Supreme Court erred in dismissing the complaint on this ground. O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.

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In an action to recover damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 9, 1995, as granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was to dismiss the complaint is denied, and the complaint is reinstated.

The language of the disclaimer provision contained in the contract of sale between the plaintiff and the seller demonstrates that the disclaimer provision did not inure to the benefit of the defendant, who was a real estate broker on the transaction and also is alleged to have fraudulently induced the plaintiff to purchase the subject property (see, Wittenberg v Robinov, 9 NY2d 261, 263-264). Accordingly, the Supreme Court erred in dismissing the complaint on this ground. O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.

Troiano v. Tuccio, 227 A.D.2d 467, 643 N.Y.S.2d 157, 1996 N.Y. App. Div. LEXIS 5092 (N.Y. Ct. App. 1996).

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