Opinion
No. 3137.
December 21, 2010.
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.
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.
Before: Saxe, J.P., Friedman, Nardelli, Moskowitz and Richter, JJ.
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 extracontractual 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 NY2d 317, 320-321). The exception to Danann Realty set forth in Steinhardt Group v Citicorp ( 272 AD2d 255) 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, the causes of action for recovery of legal fees pursuant to the purchase agreements and for return of the deposit are also viable.
[Prior Case History: 2009 NY Slip Op 32228(U).]