Opinion
February 2, 1990
Appeal from the Supreme Court, Niagara County, Sedita, J.
Present — Callahan, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Supreme Court properly granted plaintiffs' motion for summary judgment seeking a judgment of foreclosure and dismissing defendants' second and fourth counterclaims. Moreover, in our view, defendants' first and third counterclaims must also be dismissed. Defendants concede that they are in default on the mortgage but contend that plaintiffs' preagreement representations and postagreement conduct caused the inability to meet mortgage payments. Defendants rely on the general project plan (Plan), filed by plaintiffs with the City of Niagara Falls Clerk's office, as support for that contention. Defendants' arguments presuppose that plaintiff, New York State Urban Development Corporation (UDC), had a contractual obligation to defendants to develop the Plan in accordance with the proposals contained in the Plan. In our view, however, the Plan was not a part of the equity and regulatory agreement (Agreement) and the basic documents forming a part of that Agreement. The Agreement is the only contract between the parties; the Agreement imposes no contractual obligation upon UDC to develop the Phase I Project in accordance with the Plan. Further, the Agreement contains a disclaimer clause which, in our view, prohibits defendants' reliance upon any representations made with respect to the development of Phase II. Indeed, the Agreement makes no mention of Phase II (see, Danann Realty Corp. v Harris, 5 N.Y.2d 317; New York State Urban Dev. Corp. v Garvey Brownstone Houses, 98 A.D.2d 767). Finally, defendants' contentions grounded on fraud and misrepresentation lack merit since they are predicated upon representations with respect to events to occur in the future. "Fraud, to be actionable, must be based on false representations of existing facts" (Irving Trust Co. v La Pilar Realty, 56 A.D.2d 532).