Most v. Monti
| Decision Date | 06 December 1982 |
| Parties | Michael MOST, et al., Appellants, v. Donald MONTI, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Michael K. Grundfast, Smithtown, for appellants.
Speno, Goldberg, Moore, Margules & Corcoran, P.C., Mineola (Robert W. Corcoran, Mineola, of counsel), for respondents.
Before TITONE, J.P., and BROWN, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In an action to, inter alia, recover damages for fraud, plaintiffs appeal from an order of the Supreme Court, Nassau County (BECKER, J.), dated August 11, 1981, which granted the defendants' motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion for an injunction pendente lite as academic.
Order affirmed, with $50 costs and disbursements.
Plaintiffs purchased a racquet and health club from the defendants for over $1,300,000. They allege in their complaint that during negotiations leading to the sale, defendant Donald Monti falsely represented to plaintiff Michael Most, that the real property and improvements were fully assessed and that the amount of current and projected taxes was based upon said full assessment. It is further alleged that in ignorance of its falsity, the plaintiffs relied upon that misrepresentation in entering into the contract of sale. In an affidavit opposing defendants' motion to dismiss the complaint, plaintiff Michael Most asserted that had he known prior to closing of title that the property was not fully assessed, he either would not have made an offer to purchase the facility, or else he would have offered a lower purchase price and less favorable terms.
We do not agree with Special Term's finding that the complaint should be dismissed upon the ground that the language of the merger clause set forth in paragraph 22 of the contract precludes a claim based on allegedly fraudulent misrepresentations.
The paragraph states in relevant part:
It is well established that a general "boiler-plate" merger clause is ineffective to preclude judicial inquiry into specific allegations of fraud (Forest Bay Homes v. Kosinski, 50 A.D.2d 829, 376 N.Y.S.2d 205). Neither the merger clause, nor any other provision of the contract of sale, precludes the purchasers from now claiming that they relied upon a misrepresentation by defendant Monti...
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