1537 ASSOCIATES v. KAPRIELIAN ENTERPRISES INC

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Supreme Court, Appellate Division, First Department, New York.

1537 ASSOCIATES, Plaintiff-Respondent, v. KAPRIELIAN ENTERPRISES, INC., etc., et al., Defendants-Appellants.

Decided: March 30, 1999

SULLIVAN, J.P., NARDELLI, WILLIAMS and ANDRIAS, JJ. Paul R. Sklar, for Plaintiff-Respondent. Michael C. Miller, for Defendants-Appellants.

Order, Supreme Court, New York County (Carol Huff, J.), entered July 1, 1998, which, to the extent appealed from, granted plaintiff's motion to dismiss defendants' affirmative defenses and counterclaims to the extent of dismissing the affirmative defense and counterclaim alleging fraud in the inducement, unanimously affirmed, with costs.

 While the general merger clause in the lease is ineffective to exclude the parol evidence of fraud in the inducement (see, Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320, 184 N.Y.S.2d 599, 157 N.E.2d 597;  Blittner v. Filroben Assocs., 183 A.D.2d 645, 584 N.Y.S.2d 46), we nonetheless find that the motion court properly dismissed defendants' affirmative defense and counterclaim because the misrepresentation alleged, regarding the size of the premises to be rented, was not one upon which defendants could have reasonably relied.   The dimensions of the subject premises were not within plaintiff's peculiar knowledge and could have been ascertained had defendants diligently inspected the premises, as they were bound to, to insure the protection of their interests in the subject arms' length commercial real estate transaction (see, Danann Realty Corp. v. Harris, 5 N.Y.2d supra, at 322, 184 N.Y.S.2d 599, 157 N.E.2d 597;  Busch v. Mastropierro, 258 A.D.2d 492, 684 N.Y.S.2d 632).

MEMORANDUM DECISION.