Opinion
April 26, 1993
Appeal from the Supreme Court, Richmond County (Amann, J.).
Ordered that the judgment is affirmed, with costs.
In June 1987 the plaintiffs sold a parcel of real property to the defendant, taking back a purchase money mortgage as part of the purchase price. After making payments on the mortgage for 19 months, the defendant defaulted. Accordingly, in March 1990 the plaintiffs commenced this foreclosure action. The defendant interposed affirmative defenses and counterclaims, alleging essentially that he was fraudulently induced into entering into the contract as a result of oral misrepresentations by the plaintiffs that the property was suitable for building. Thereafter, the court granted the plaintiffs' motion to strike the affirmative defenses and counterclaims, and awarded the plaintiffs summary judgment. Subsequently, the court issued a judgment of foreclosure and ordered the sale of the premises. We affirm.
"While general merger clauses are ineffective to exclude parol evidence of fraud in the inducement (Sabo v Delman, 3 N.Y.2d 155, 162), a specific disclaimer destroys allegations that the agreements were executed in reliance upon contrary oral misrepresentations" (Marine Midland Bank v Cafferty, 174 A.D.2d 932, 933; see also, Glenfed Fin. Corp. v Aeronautics Astronautics Servs., 181 A.D.2d 575; Mahn Real Estate Corp. v Shapolsky, 178 A.D.2d 383, 385). Here, the contract provided that the "seller represents that the premises have been certified for subdivision", but the contract also expressly stated that the purchaser would "assume all responsibility and costs for completion of the subdivision as to the parcel herein". Thus, the contract's express terms contradict the defendant's allegations that he executed the contract in reliance upon the particular oral misrepresentations that the parcel was a "buildable" lot (see, Glenfed Fin. Corp. v Aeronautics Astronautics Servs., supra). Moreover, the defendants could not have reasonably relied upon the alleged oral misrepresentations, since the facts in question, i.e., the suitability of the parcel for building, were not peculiarly within the knowledge of the plaintiffs (see, Danann Realty Corp. v Harris, 5 N.Y.2d 317; DiFilippo v Hidden Ponds Assocs., 146 A.D.2d 737; Dunkin' Donuts v Liberatore, 138 A.D.2d 559).
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Thompson, Balletta and Lawrence, JJ., concur.