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HARMIT REALTIES LLC, Plaintiff–Respondent, v. 835 AVENUE OF THE AMERICAS, L.P., et al., Defendants–Appellants,

“XYZ Corps 1–5,” etc., Defendants. Avenue of the Americas, L.P., et al., Counterclaim Plaintiffs–Appellants, v. Harmit Realties LLC, et al., Counterclaim Defendants–Respondents.

Decided: January 19, 2016

MAZZARELLI, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, JJ. Kasowitz Benson Torres & Friedman LLP, New York (Jed I. Bergman of counsel), for appellants. Pryor Cashman LLP, New York (Todd E. Soloway, Eric D. Sherman and Jared D. Newman of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 3, 2015, which, to the extent appealed from, granted plaintiff/counterclaim defendant Harmit Realties LLC's and counterclaim defendant Harvey Drucker's motion to dismiss defendants' counterclaims for fraud, negligent misrepresentation, reformation, and breach of contract, unanimously affirmed, with costs.

The motion court correctly determined that the counterclaims for fraud, negligent misrepresentation, and reformation are precluded by the subject agreements' express disclaimers stating that Harmit made no representations concerning the amount of its utilized development rights and excess development rights, where defendants had the means to discover the correct amounts before they entered into the agreements (see Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320–322 [1959]; B & C Realty, Co. v. 159 Emmut Props. LLC, 106 AD3d 653, 655 [1st Dept 2013]; Arfa v. Zamir, 76 AD3d 56, 59–60 [1st Dept 2010], aff'd 17 NY3d 737 [2011] ). Drucker, as Harmit's managing member, may invoke the contractual disclaimers as a defense to the counterclaims (see Katz v. Image Innovations Holdings, Inc., 2008 WL 4840880, *7, 2008 U.S. Dist LEXIS 91449, *24 [SD NY, Nov. 5, 2008, No. 06–Civ–3707(JGK) ], citing Vesey Assoc. v.. Regime Realty Corp., 35 Misc.2d 353 [Sup Ct, N.Y. County 1961] ).

The motion court correctly determined that counterclaim plaintiffs failed to properly allege a breach of the Zoning Lot Development Agreement, because they did not indicate how the alleged unlawfully oversized mezzanine or inaccurate certificate of occupancy adversely affected their rights or property.

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