Opinion
2013-02-14
Guy MASIACH, Plaintiff–Appellant, v. 420 WEST INVESTORS, LLC, Defendant–Respondent.
Andrew J. Spinnell, New York, for appellant. Starr Associates LLP, New York (Shaun W. Pappas of counsel), for respondent.
Andrew J. Spinnell, New York, for appellant. Starr Associates LLP, New York (Shaun W. Pappas of counsel), for respondent.
SWEENY, J.P., SAXE, DEGRASSE, ABDUS–SALAAM, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2012, dismissing the complaint pursuant to an order, same court and Justice, entered June 21, 2011, which granted defendant's cross motion for summary judgment dismissing the complaint, and denied plaintiff's motion to strike or preclude as moot, unanimously affirmed, with costs.
We find that the express language of the offering plan, incorporated by reference into the purchase agreement entered into by the parties, limits defendant's obligation under the purchase agreement to making repairs, or alternatively, recompensing for repairs made ( see 430 W. 23rd St. Tenants Corp. v. 23rd Assoc., 155 A.D.2d 237, 238, 546 N.Y.S.2d 619 [1st Dept. 1989] ). To construe the purchase agreement otherwise would, in effect, render the express language of the offering plan meaningless ( see Diamond Castle Partners IV PRC, L.P. v. IAC/InterActiveCorp, 82 A.D.3d 421, 422, 918 N.Y.S.2d 73 [1st Dept. 2011] ). Accordingly, plaintiff's claims seeking rescission of the purchase agreementand monetary damages for loss of rental income are barred by the express language of the offering plan.
In addition, to the extent plaintiff argues that defendant fraudulently misrepresented that it would make repairs under the agreement, such an allegation is insufficient to state a claim for fraudulent inducement ( see Sass v. TMT Restoration Consultants Ltd., 100 A.D.3d 443, 443, 953 N.Y.S.2d 574 [1st Dept. 2012] ).
We have considered plaintiff's remaining arguments and find them unavailing.