Opinion
No. 2003-1241 RIC.
Decided June 4, 2004.
Appeal by plaintiffs from so much of an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered July 9, 2003, as denied plaintiffs' motion for summary judgment dismissing defendants' second counterclaim and to preclude defendants from offering as a defense any alleged misrepresentations by plaintiffs prior to execution of the contract of sale, and granted defendants' motion for an examination before trial of plaintiffs.
Order insofar as appealed from unanimously affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Defendants' second counterclaim sought recovery for expenses incurred in connecting its waste line to the New York City sewer system based on the alleged fraud and misrepresentation of plaintiffs. Plaintiffs claim that the merger and disclaimer clauses in the contract of sale preclude defendants from relying on the statement in the multiple listing service agreement to the effect that the premises were connected to the sewer system and preclude recovery on said counterclaim.
Generally, a cause of action to recover damages for fraud may not be maintained when the only fraud alleged relates to a breach of contract ( Gizzi v. Hall, 300 AD2d 879; Page v. Muze, Inc., 270 AD2d 401). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract ( Clarke-Fitzpatrick Inc. v. Long Is. R.R., 70 NY2d 382). Where, as in the case at bar, defendants' allegations include charges of fraud in the inducement by misrepresentation of a present fact which induced them to enter into the contract and take title to the property, the charges are not merely redundant of a breach of contract claim ( R K B Enters. v. Ernst Young, 182 AD2d 971, 972). As a result, the doctrine of merger, as embodied in the contract of sale, does not preclude the instant claim based on fraud in the inducement ( see 6A NY Jur 2d, Fraud and Deceit § 215). Thus, the court properly denied plaintiffs' motion insofar as it sought to dismiss the second counterclaim and to preclude defendants from offering evidence of said misrepresentations.
While plaintiffs contend that defendants should be precluded from conducting an examination before trial (EBT) of plaintiffs inasmuch as the demand for same was untimely, we note that plaintiffs' counsel did not, in his papers in opposition to defendants' motion, refute any of the facts set forth in the moving papers. Defendants' attorney stated that subsequent to defendants' filing of the note of issue, the parties agreed to conduct an EBT. Plaintiffs, after being provided with discovery, withdrew their request to examine defendants and refused to allow defendants to conduct an EBT of them. In view of the foregoing, and since, as the trial court noted, defendants would be prejudiced in their ability to defend against the action and/or prosecute their counterclaim without such disclosure, the court's granting of said motion should not be disturbed.