REXHEPI v. ASTORIA PARK REALTY LLC (2026)

Foley & Associates, P.C., New York (J. Garth Foley of counsel), for appellant.

Zarin & Steinmetz, LLP, White Plains (Lee J. Lefkowitz of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered September 24, 2025, which granted the motion of defendant Astoria Park Realty LLC to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

This action arises from plaintiff's agreement to purchase a severely damaged Bronx property for $550,000 in an all-cash, “as is” transaction.  In March 2018, a fallen tree caused extensive damage to the property, prompting the New York City Department of Buildings to issue an unsafe building violation.  When defendant listed the property for sale several years later, the listings expressly disclosed “[u]nsafe conditions due to water damage from [a] fallen tree,” specified that the property would be sold “as is,” prohibited interior access, and required cash-only offers supported by proof of funds.

In February 2024, plaintiff offered $550,000 for the property.  His written letter of intent acknowledged that the offer was “as is,” without inspection, and for cash.  The memorandum of sale similarly stated:  “INSPECTION:  None – Home deemed unsafe.”  Defendant's broker provided plaintiff's broker with interior photographs depicting extensive damage and unsafe conditions.

The parties executed a contract that same month.  Its preamble provided a form disclaimer that, absent a contrary contractual provision, General Obligations Law § 5–1311 would govern casualty loss occurring before closing.  Paragraph 12 expressly acknowledged plaintiff's awareness of the property's physical condition and required him to accept it “as is,” subject to “reasonable use, wear, tear and natural deterioration” between contract and closing, without reduction in purchase price “or [a] claim of any kind for any change in such condition ․”

Plaintiff made a $55,000 down payment, which defendant's attorney held in escrow and, by agreement, applied toward water charges discovered during the title search in the following months.

By October 2024, defendant was attempting to schedule a closing, but plaintiff's counsel advised that plaintiff needed additional time to secure funds.  Defendant scheduled a time-of-the-essence closing for December 3, 2024.  The parties twice agreed to adjourn the closing, ultimately rescheduling it for January 28, 2025.

Five days before closing, plaintiff, then represented by new counsel, demanded a $270,000 reduction in purchase price under General Obligations Law § 5–1311.  Although he had waived inspection and never entered the property, plaintiff claimed that he had observed new damage to the property through a window the preceding week.  He asserted that the damage exceeded reasonable wear, tear, and natural deterioration contemplated by paragraph 12 of the contract, and estimated a repair cost of $270,000 — unsupported by an engineering report, contractor's estimate, or other documentation.

Defendant maintained that the newly complained-of conditions plaintiff described were the same unsafe and deteriorated conditions disclosed before the contract was executed, and refused to reduce the purchase price.  Plaintiff neither appeared at the January 28 closing nor tendered the balance due.

Plaintiff thereafter commenced this action for breach of contract, seeking specific performance with a $270,000 purchase price reduction or, alternatively, $1 million in damages.  He also filed a notice of pendency against the property.

Defendant moved to dismiss pursuant to CPLR 3211(a)(1) and (7), relying on the contract, property listings, precontract photographs, correspondence, and evidence of the unsuccessful closing.  Defendant also submitted affidavits from its managing member and broker attesting that the alleged damage predated the contract.

As an initial matter, the court should have considered plaintiff's corrected affidavit in opposition to defendant's motion (see CPLR 2001).  The substance of the April 2, 2025 affidavit, which was neither signed nor notarized, and the affidavit plaintiff filed on June 2, 2025, was the same.  In addition, because the court adjourned oral argument from June 2 to June 9, defendant had seven days to respond to the June 2 affidavit (see CPLR 2214[b] ).  However, the court properly declined to consider plaintiff's counsel's affirmation filed on June 9, 2025, as it was untimely (id.).

Nevertheless, even considering plaintiff's opposition in its entirety, Supreme Court properly dismissed the complaint.  Plaintiff expressly waived inspection before executing the contract, rendering his allegations concerning the property's precontract interior condition speculative and unsupported by firsthand knowledge.  We are not obliged to accept plaintiff's speculative assertions on a motion to dismiss (see e.g. Harvey v. Greenberg, 82 AD3d 683 [1st Dept 2011] ).

Moreover, the documentary evidence conclusively establishes that plaintiff was fully aware of the property's severely damaged and unsafe condition before agreeing to purchase it (CPLR 3211[a][1] ).  The listings, precontract photographs, correspondence, and contractual disclosures utterly refute plaintiff's claim that he contracted to purchase a property that was materially different from the one that defendant offered to convey.

Plaintiff's reliance on General Obligations Law § 5–1311 — which applies only in the absence of an express contractual provision allocating risk of pre-closing loss — does not compel a different result.  Paragraph 12 of the parties' contract expressly addressed the property's condition between the contract and closing, referring to the property's compromised condition and providing that plaintiff would accept the premises “as is,” subject to “natural deterioration between the date hereof and the date of closing ․ without any reduction in the purchase price or claim of any kind for any change in condition ․”

We are mindful that an “as-is” clause in a real estate contract does not, standing alone, bar claims under General Obligations Law § 5–1311.  However, under the circumstances, plaintiff knowingly assumed the risks inherent in purchasing a severely damaged, unsafe property that he was not entitled to inspect.  Thus, even fully crediting plaintiff's assertion that the property sustained additional damage after execution of the contract, his allegations do not establish that the damage constituted a material casualty loss that would not have been attributable to “natural deterioration” arising from the hazardous and unsafe conditions disclosed prior to the sale.

As plaintiff cannot invoke General Obligations Law § 5–1311 as a pretext to obtain a substantial reduction to the agreed-upon purchase price based on the risks he knowingly accepted, the complaint was properly dismissed.