Plaza PH2001 LLC v. Plaza Residential Owners LP

• Decision Date: 21 December 2010
• Citation: Plaza PH2001 LLC v. Plaza Residential Owners LP, 914 N.Y.S.2d 26, 79 A.D.3d 587 (N.Y. App. Div. 2010)
• 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...