Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Pine and Schnepp, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: In plaintiff's action to collect sums allegedly due under a rental service agreement, Special Term has granted plaintiff's motion for summary judgment dismissing defendants' affirmative defenses and counterclaims. We agree that the second and third affirmative defenses and third counterclaim were properly dismissed as barred by the parol evidence rule since the allegations, if established, would be directly contrary to the terms of the written agreement (see, Richardson, Evidence §§ 601-604 [Prince 10th ed]; Studley v National Fuel Gas Supply Corp., 107 A.D.2d 122, 125). The fourth affirmative defense was also properly dismissed.
Special Term erred, however, in dismissing the first affirmative defense and the first and second counterclaims as barred by the parol evidence rule. The representations attributed to plaintiff's agent to the effect that defendants were not legally bound under their existing linen service agreement with plaintiff's competitor are not inconsistent with the warranty undertaken by defendants in paragraph 7 of the written agreement to the effect that they are not contractually obligated to take linen service "from any other person, entity or corporation". Indeed, it is alleged that defendants agreed to the warranty in paragraph 7 only because of their reliance upon plaintiff's representations.