Plaza PH2001 LLC v. Plaza Residential Owners LP

• Decision Date: 21 December 2010
• Citation: 79 A.D.3d 587,914 N.Y.S.2d 26
• Parties: The PLAZA PH2001 LLC, Plaintiff-Appellant, v. PLAZA RESIDENTIAL OWNERS LP, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 26

79 A.D.3d 587

The PLAZA PH2001 LLC, Plaintiff-Appellant,

v.PLAZA RESIDENTIAL OWNERS LP, et al., Defendants-Respondents.

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

Dec. 21, 2010.

Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellant.

Kramer Levin Naftalis & Frankel LLP, New York (Jeffrey W. Davis of counsel), for respondents.

SAXE, J.P., FRIEDMAN, NARDELLI, MOSKOWITZ, RICHTER, JJ.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered November 17, 2009, which granted defendants' motion to dismiss the complaint, unanimously modified, on the law, to deny the motion as to the causes of action for breach of contract, recovery of legal fees pursuant to contract, and return of deposits, and otherwise affirmed, without costs.

The motion was correctly granted as to the fraud cause of action because plaintiff stipulated in the Purchase Agreements that it was not relying upon any extra-contractual representations. "Such a specific disclaimer destroys the allegations in [the] complaint that the agreement was executed in reliance upon [defendants'] contrary oral representations" ( Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320-321, 184 N.Y.S.2d 599, 157 N.E.2d 597 [1959] ). The exception to Danann Realty set forth inSteinhardt Group v. Citicorp, 272 A.D.2d 255, 708 N.Y.S.2d 91 [2000] is inapplicable here. That exception applies only where the defendant was in exclusive possession of facts demonstrating that a disclaimed representation was false at the time the time the disclaimer was made. Here, the allegedly misrepresented facts were the actual measurements and attributes of the finished apartment, which did not exist at the time the disclaimers were made. However, plaintiff stated a cause of action for breach of contract by alleging that certain aspects of the finished penthouse apartment did not conform to the specifications of the condominium offering plan incorporated by reference into the Purchase Agreements, and defendants' submissions failed to establish grounds to dismiss the contract claim pursuant to CPLR 3211(a)(1). Finally, since the complaint states a cause of action for breach of contract, thecauses of action for recovery of legal fees pursuant to the Purchase Agreements and for return of the deposit are also viable.