Appellate Division of the Supreme Court of New York, 2002

Crowley Marine Associates v. Nyconn Associates, L.P.

Appellate Division of the Supreme Court of New York · Decided March 4, 2002

292 A.D.2d 334; 738 N.Y.S.2d 681; 2002 N.Y. App. Div. LEXIS 2237

Cases that cite this one

15 later published cases cite this decision.

Fenix Capital Funding, LLC v. Phlllips Dev. & Events, LLC (New York Supreme Court, Kings County 2024)
Fenix Capital Funding, LLC v. Memorial Wine Cellar, LLC (New York Supreme Court, Kings County 2024)
Fenix Capital Funding, LLC v. Pathfinder Trucking & Logistics, LLC (New York Supreme Court, Kings County 2024)
TIAA Global Investments, LLC v. One Astoria Square LLC (Appellate Division of the Supreme Court of New York 2015)
Rojas v. Paine (Appellate Division of the Supreme Court of New York 2012)
Rojas v. Paine (Appellate Division of the Supreme Court of New York 2012)
Lunal Realty, LLC v. DiSanto Realty, LLC (Appellate Division of the Supreme Court of New York 2011)
H.B. Singer, LLC v. Thor Realty, LLC (Appellate Division of the Supreme Court of New York 2008)
Rivietz v. Wolohojian (Appellate Division of the Supreme Court of New York 2007)
Ka Foon Lo v. Curis (Appellate Division of the Supreme Court of New York 2006)
Marshel v. Farley (Appellate Division of the Supreme Court of New York 2005)
Fabozzi v. Coppa (Appellate Division of the Supreme Court of New York 2004)
Guerrera v. Foundation Title & Escrow Corp. (Appellate Division of the Supreme Court of New York 2003)
112 Duane Associates, LLC v. Malkani (Appellate Division of the Supreme Court of New York 2002)
Rothstein v. Equity Ventures, LLC (Appellate Division of the Supreme Court of New York 2002)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for fraud and breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated November 16, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

This action involves the sale of commercial real estate. The plaintiff, asserting causes of action sounding in fraud and breach of contract, alleged that the defendant seller falsely represented that the property taxes on the property were $14,000 annually when in fact they exceeded $22,000 annually.

The cause of action to recover damages for fraud must be dismissed. It is essentially one to recover damages for breach of contract, since the alleged false representation was set forth in a rider to the contract of sale. Merely alleging scienter in a cause of action to recover damages for breach of contract, unless the representations alleged to be false are collateral or extraneous to the terms of the agreement, does not convert a breach of contract cause of action into one sounding in fraud (see, Weitz v Smith, 231 AD2d 518; Jackson Hgts. Med. Group v Complex Corp., 222 AD2d 409; Americana Petroleum Corp. v Northville Indus. Corp., 200 AD2d 646, 647-648). Therefore, the plaintiff failed to state a cause of action to recover damages for fraud.

The plaintiff also failed to state a cause of action to recover damages for breach of contract. Title to the property had closed *335and the deed was delivered. Therefore, any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a “clear intent evidenced by the parties that a particular provision [of the contract of sale] shall survive the delivery of the deed” (Davis v Weg, 104 AD2d 617, 619; see, Dourountoudakis v Alesi, 271 AD2d 640). The parties’ intent is clear from the contract that they did not intend the property tax provision to survive the closing.

The plaintiffs remaining contentions are without merit. Ritter, J.P., Smith, Krausman and Townes, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.