DUANE THOMAS LLC v. 62 THOMAS PARTNERS LLC (2002)

Judgment, Supreme Court, New York County (Richard Braun, J.), entered June 8, 2001, which, to the extent appealed from as limited by the brief, upon the prior grant of defendants' motions pursuant to CPLR 3211, dismissed the first and fourth causes of action in the amended complaint, unanimously affirmed, without costs.

The first cause of action purporting to allege fraud was properly dismissed since plaintiff has no claim of justifiable reliance upon the alleged misrepresentations in the Suskin affidavit.   Plaintiff had the right to inspect the subject premises before the closing, and, as the parties' contract indicates, did so.   The items mentioned in the Environmental Control Board's Notice of Violation, namely, skylights and fire doors in public hallways, were not peculiarly within defendants' knowledge.   Since plaintiff could have discovered the premises' non-compliance with the Settlement Agreement “by making additional relevant inquiries and exercising ordinary intelligence” (Dyke v. Peck, 279 A.D.2d 841, 844, 719 N.Y.S.2d 391), it “ ‘will not be heard to complain that [it] was induced to enter into the transaction by misrepresentations' ” (CFJ Assocs. of New York, Inc. v. Hanson Indus., 274 A.D.2d 892, 895, 711 N.Y.S.2d 232, quoting Schumaker v. Mather, 133 N.Y. 590, 596, 30 N.E. 755).

Inasmuch as it is clear from plaintiff's reply brief and affidavit that its fourth cause of action, also purporting to allege fraud, is based solely on alleged misrepresentations in the contract for the sale of the subject property, and thus that the complained-of misrepresentations are not collateral or extraneous to the contract, the cause states no claim for fraud (see e.g. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265, 269, 691 N.Y.S.2d 51, lv. denied 95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653;  Morgan v. A.O. Smith Corp., 265 A.D.2d 536, 697 N.Y.S.2d 152, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 522, 735 N.E.2d 1287).