Wittenberg v. Robinov

9 A.D.2d 290, 193 N.Y.S.2d 847, 1959 N.Y. App. Div. LEXIS 5675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1959
• Status: Published

Opinions

Per Curiam.

Plaintiff appeals from an ■ order granting-defendants’ motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice and from the judgment entered thereon.

Plaintiff, the purchaser of a building in Bronx County, brought this action to recover damages from the seller and the seller’s broker and agent for fraudulent misrepresentations -concerning specific, detailed operating expenses of the building. The contract of sale provided^ among other things, that plaintiff had inspected the premises and agreed to take them “as is ”. It also provided “ that the seller has made no representation as to physical condition or services ”. This provision was followed by a conventional merger clause, with “neither party relying upon any statement or representation, not embodied in this contract, made by the other. ’ ’

Unlike the language of specific disclaimer in Danann Realty Corp. v. Harris (5 N Y 2d 317), it cannot be said that the plaintiff herein 1 ‘ has in the plainest language announced and stipulated that it is not relying on any representations as to the very matter as to which it now claims it was defrauded ’ ’ (p. 320). On this motion addressed to the pleadings we are limited to the averments in the complaint. It may well be that on a motion for summary judgment plaintiff would find it difficult to sustain his position.

The order of Special Term and the judgment entered thereon should be reversed, on the law, and the motion of defendants denied, with costs.