PURCHASE PARTNERS II LLC v. [And a Third-Party Action]. (2008)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 8, 2007, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' motion for summary judgment, unanimously modified, on the law, to declare that plaintiffs are not entitled to enforce the August 11, 2004 letter agreement, and otherwise affirmed, without costs.

Even if, arguendo, plaintiffs were third-party beneficiaries of the August 11, 2004 letter agreement between defendant and third-party defendant Hochfelder, the merger clause in their November 12, 2004 separation agreement effectively barred their claims under the earlier agreement (see Jarecki v. Shung Moo Louie, 95 N.Y.2d 665, 669, 722 N.Y.S.2d 784, 745 N.E.2d 1006 [2001] ).   Plaintiffs were aware of the terms of the separation agreement, which did not contain the claimed benefits but did contain such merger clause, and they did not object (see Barnum v. Millbrook Care Ltd. Partnership, 850 F.Supp. 1227, 1236 [1994], affd. 43 F.3d 1458 [1994] ).   We modify solely to declare in defendant's favor (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 [1962], cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164 [1962] ).