Lutz v. Bayberry Huntington, Inc.

• Decision Date: 16 January 1956
• Citation: 148 N.Y.S.2d 762
• Parties: Henry LUTZ, Plaintiff, v. BAYBERRY HUNTINGTON, Inc., Joseph A. Prisant and Howard M. Berman, Defendants.
• Court: New York Supreme Court

Page 762

148 N.Y.S.2d 762

Henry LUTZ, Plaintiff, v.BAYBERRY HUNTINGTON, Inc., Joseph A. Prisant and Howard M Berman, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Jan. 16, 1956.

Van Derveer & Van Derveer, New York City, for plaintiff.

Schiffmacher & Williams, Great Neck, for defendants.

CHRIST, Justice.

In this action the plaintiff seeks to recover damages allegedly suffered because the house erected for him by the corporate defendant is claimed not to be what he bargained for.The complaint sets forth five causes of action and all are against the corporate defendant and the two individuals who are officers of the corporation.

The three defendants move to dismiss the complaint pursuant to Rule 106(4) of the Rules of Civil Practice upon the ground that the complaint in its entirety and in each of its five separate causes of action fails to state facts sufficient to constitute a cause of action.All three defendants move to strike out the first four causes of action pursuant to Rules 103and107(7) of the Rules of Civil Practice.In addition, the two individual defendants, as distinct from the corporate defendant, seek to strike from the complaint the first four causes of action pursuant to Rules 103and107(7) of the Rules of Civil Practice.Finally, and in the alternative, all three defendants move for an order directing that the first four causes of action be made more definite and certain so that the defendants may ascertain upon what basis each of such causes of action is founded.Affidavits and exhibits have been submitted for use in connection with those branches of the motion made pursuant to Rules 103and107(7).It appears therefrom that plaintiff's purchase of the house which is the subject of this litigation was made pursuant to a written contract between the plaintiff, as purchaser, and the corporate defendant, as seller.The obligations of the contracting parties are detailed with particularity and considerable precision in this written contract.Paragraph '29' of the contract expressly provides that the written contract states the entire agreement of the parties and relieves the seller from being bound by any stipulations, representations, agreements or promises, oral or otherwise, not printed or inserted in the written contract.It is further provided in paragraph '30' of the contract that acceptance and delivery of the closing deed shall constitute full compliance by the seller with the terms of the contract on its part to be performed except as to the matters which are specifically made to survive the title closing.The first two causes of action must be examined in the light of the contract between the parties.

In the first cause of action the plaintiff appears to sue on a theory of fraud predicating such cause upon an advertisement inserted in a New York City newspaper.The defendants claim they are unable to determine definitely whether this cause of action is founded on a theory of fraud or breach of contract.There may be some basis for such uncertainty, but on this motion the court will assume, in view of statements made in plaintiff's brief, that the first cause of action sounds in fraud.Paragraph 'Eighth' of the complaint alleges, in substance, that the defendants, for the purpose of inducing the plaintiff to enter into a contract, 'represented and stated to him that said contract provided that the said residence will be constructed in full and complete accordance with the statements and representations contained in said advertisement, and thereby induced him to execute the same, and pay valuable considertion therefor.'When the contract between the parties is examined it is seen that there is no reference whatever to the newspaper advertisement.The contract says that the seller agrees to erect and complete a one-family dwelling substantially similar to the seller's Model A Exhibit house and that it will be constructed in accordance with the requirements as to material and workmanship of the municipality wherein it is or will be located and the requirements of the lending institution which shall make the mortgage loan provided for in later portions of the contract.Moreover, the contract expressly reserves to the seller the right to make changes and/or substitutions of materials and/or construction provided the requirements of the lending institution making the mortgage or the governmental agency having jurisdiction are met.It is noted further that in paragraph 'Eighth' of the complaint the plaintiff has alleged the representation made by the defendants was that 'the contract provided' that the residence would be constructed in accordance with the representations contained in the newspaper advertisement and that by reason of the representation as to what the contract contained, plaintiff was induced to execute such contract and pay a valuable consideration.The allegations of this first cause of action which purport to set forth an actionable claim of fraud cannot withstand the challenge that they are sham and frivolous.The representations and statements contained in the newspaper advertisement, even were it to be assumed that they were untrue, could not be made the basis for an action sounding in fraud when the contract specifically provides that the seller is not to be bound by any representations not printed or inserted in the contract.It is important to note as well that the contract does not call for a house conforming to a description appearing in a newspaper advertisement, but for a house...