Yong Kyun Lee v. Goldstrom

135 A.D.2d 812, 522 N.Y.S.2d 917, 1987 N.Y. App. Div. LEXIS 52742

Opinion

— In an action, inter alia, for rescission of a contract for the sale of a business, the defendants appeal from so much of an order of the Supreme Court, Westchester County, entered August 6, 1986, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs, for reasons stated by Justice Wood at the Supreme Court.

We further note that contrary to the defendants’ contention, the general disclaimer and merger clause in the contract does not preclude an action to recover damages for fraud in the inducement nor does it bar parol evidence concerning the alleged fraudulent representations set forth in the complaint (see, Sabo v Delman, 3 NY2d 155, 161; Great Neck Car Care Center v Artpat Auto Repair Corp., 107 AD2d 658, 659, lv dismissed 65 NY2d 897). As stated by the Court of Appeals in Winegrad v New York Univ. Med. Center (64 NY2d 851, 853): "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case * * * Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers”. Mollen, P. J., Lawrence, Weinstein and Hooper, JJ., concur.