Rivietz v. Wolohojian
| Decision Date | 13 March 2007 |
| Docket Number | 483. |
| Citation | 38 A.D.3d 301,832 N.Y.S.2d 505,2007 NY Slip Op 01981 |
| Parties | ZECHARIAH RIVIETZ et al., Appellants, v. MICHAEL WOLOHOJIAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
On a motion to dismiss for failure to state a cause of action, the complaint should be liberally construed, the facts presumed to be true, and the pleading accorded the benefit of every possible favorable inference (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). But where the legal conclusions and factual allegations are "flatly contradicted by documentary evidence," they are not presumed to be true or accorded every favorable inference (Kliebert v McKoan, 228 AD2d 232, 232 [1996], lv denied 89 NY2d 802 [1996]), and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
The contract of sale provided that the premises were sold "as is," and contained a merger clause and a no-modification clause, as well as a clause stating it would not survive closing. This clear language more than effectively precludes the claim for breach of contract (see Crowley Mar. Assoc. v Nyconn Assoc., 292 AD2d 334 [2002]). Because plaintiffs were given the opportunity to inspect and were provided with a detailed report by their architect, and there were no allegations or evidence that defendant made any material, false representations or acts of concealment to induce plaintiffs to enter into the contract, there was no justifiable reliance to support a claim of fraudulent misrepresentation (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Christopher Assoc., 257 AD2d 1, 9 [1999]).
A claim predicated on nondisclosure requires a showing that a party is duty-bound to disclose pertinent information (see Striker v Graham Pest Control Co., 179 AD2d 984 [1992], lv dismissed 79 NY2d 1040 [1992]). Inasmuch as the premises was a condominium, defendant was not required to provide a property condition disclosure statement (Real Property Law § 462 [1]; § 461 [5]).
We have considered plaintiffs' remaining arguments and find them without merit.
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...222, 968 N.E.2d 459 [2012] ), and give the pleadings the benefit of every possible favorable inference ( Rivietz v. Wolohojian, 38 A.D.3d 301, 832 N.Y.S.2d 505 [1st Dept. 2007] ).At an auction held by plaintiff on April 16, 2012, defendant Brett Stettner successfully bid on multiple antique......
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Bd. of Managers of Chelsea 19 Condo. v. Chelsea 19 Associates
...are flatly contradicted by the "as is" clause and related disclaimer provisions in those documents ( see Rivietz v. Wolohojian, 38 A.D.3d 301, 832 N.Y.S.2d 505 [2007] ); those provisions are not undermined by the general statement in those documents that the building was in "good" condition......
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NRT N.Y., LLC v. Morin
...his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint. (Rivietz v. Wolohojian, 38 A.D.3d 301 [1st Dep't 2007] [citation omitted]). When evidentiary material is considered, "the criterion is whether the proponent of the pleading h......
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Gso Coastline Credit P'ship LP v. Global A&T Elecs. Ltd.
...any basis for aduty to disclose, a claim based upon nondisclosure of material information cannot be sustained. Rivietz v. Wolohojian, 38 A.D.3d 301, 301 (1st Dep't 2007) ("A claim predicated on nondisclosure requires a showing that a party is duty-bound to disclose pertinent information"). ......