BUSCH v. MASTROPIERRO (1999)

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated February 26, 1998, which denied their motion, inter alia, to dismiss all affirmative defenses and granted the separate cross motions of the defendants Rafaella Mastropierro, Anthony Paolino, and Nicholas Paolino and the defendant Neuhaus Realty, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 While a general merger clause is ineffective to exclude parol evidence of fraud in the inducement, a specific disclaimer defeats any allegation that the contract was executed in reliance upon contrary oral representations (see, Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320-321, 184 N.Y.S.2d 599, 157 N.E.2d 597;  Masters v. Visual Bldg. Inspections, 227 A.D.2d 597, 643 N.Y.S.2d 599;  Rudnick v. Glendale Sys., 222 A.D.2d 572, 635 N.Y.S.2d 657;  Weiss v. Shapolsky, 161 A.D.2d 707, 555 N.Y.S.2d 843).   The subject contract contained a provision that the purchasers were fully aware of the physical condition and state of repair of the premises based on their own inspection and investigation, and not based upon any information, data, statements or representations, written or otherwise as to the physical condition, state of repair or any other matters related to the premises given or made by the seller.   The rider to the contract provided that the purchasers inspected the premises and accepted them in “as is” condition.   These clauses are sufficiently specific to bar the plaintiffs from claiming that they were fraudulently induced into entering the contract because of oral representations to the contrary (see, Danann Realty Corp. v. Harris, supra;  Mahn Real Estate Corp. v. Shapolsky, 178 A.D.2d 383, 577 N.Y.S.2d 824).

 Furthermore, the misrepresentation allegedly relied upon was not a matter within the peculiar knowledge of the defendants (see, Danann Realty Corp. v. Harris, supra;  Cohen v. Cerier, 243 A.D.2d 670, 672, 663 N.Y.S.2d 643;  Superior Realty Corp. v. Cardiff Realty, 126 A.D.2d 633, 511 N.Y.S.2d 70).   There is no indication that the defendants had knowledge that the source of the water seepage on the premises was due to alleged damage to sewer lines or the possible existence of a cesspool on the property instead of a high water table.   The fact that the house on the premises was exposed to a constant water problem could have been and indeed was discovered by the plaintiffs through the exercise of due diligence.

The plaintiffs' remaining contention is without merit.

MEMORANDUM BY THE COURT.