KAY v. POLLAK

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

Mitchell N. KAY, Appellant, v. Jason H. POLLAK, et al., Respondents, et al., Defendants.

Decided: May 27, 2003

ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN and STEPHEN G. CRANE, JJ. Mitchell N. Kay, New York, N.Y. (Eric S. Goldstein of counsel), appellant pro se. McMillan, Rather, Bennett & Farinacci, P.C., Melville, N.Y. (Michael C. Schmidt of counsel), for respondents.

In an action to recover damages for breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Covello, J.), entered June 3, 2002, which granted the motion of the defendants Jason H. Pollak and Perri Pollak pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In September 2001 the plaintiff purchased real property from the defendants Jason H. Pollak and Perri Pollak.   He subsequently brought this action in which he asserted four causes of action against the Pollaks for breach of contract and fraud, alleging that they misrepresented to him that the heating and air conditioning system was working and the amount of real estate taxes on the property, and concealed the existence of two collapsed dry wells on the property, which constituted a dangerous condition on the premises.   The plaintiff also contends that the complaint stated a cause of action under General Business Law § 349.

 The Supreme Court properly granted the Pollaks' motion to dismiss the complaint insofar as asserted against them.   The specific disclaimer in the contract between the parties defeats the plaintiff's allegation that the contract was executed in reliance upon contrary oral representations and, therefore, bars the first cause of action, which alleged that the Pollaks fraudulently represented that the heating and air conditioning system was in proper working order (see Busch v. Mastropierro, 258 A.D.2d 492, 493, 684 N.Y.S.2d 632;  see also Bedowitz v. Farrell Dev. Co., 289 A.D.2d 432, 735 N.Y.S.2d 150;  Platzman v. Morris, 283 A.D.2d 561, 562-563, 724 N.Y.S.2d 502).   Similarly, the second cause of action to recover damages for breach of contract is barred (see Bedowitz v. Farrell Dev. Co., supra;  Smith v. Fitzsimmons, 180 A.D.2d 177, 180, 584 N.Y.S.2d 692).

 The Pollaks were entitled to dismissal of the third and fourth causes of action which sought to recover damages based on allegations that they fraudulently misrepresented the amount of taxes owed on the property because “the actual amount of real estate taxes on the property was not a matter peculiarly within the knowledge of the [Pollaks]” and “could have been discovered by the plaintiff through the exercise of due diligence” (Cohen v. Cerier, 243 A.D.2d 670, 672, 663 N.Y.S.2d 643;  see Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 322, 184 N.Y.S.2d 599, 157 N.E.2d 597;  Most v. Monti, 91 A.D.2d 606, 606-607, 456 N.Y.S.2d 427).

Finally, the complaint failed to state a cause of action under General Business Law § 349 (see Canario v. Gunn, 300 A.D.2d 332, 333, 751 N.Y.S.2d 310).

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