Rugenstein v. Frosty Teddy Corp. 29 A.D.2d 624

Order unanimously modified by directing judgment dismissing the first, third and fourth causes of action alleged in the amended complaint and striking from paragraph 11 of the amended complaint such of its allegations as reallege paragraphs 5 through 10 of the amended complaint, and as so modified affirmed, without costs. Memorandum: The breaches of. express and implied warranties alleged in plaintiffs’ first, third and fourth causes of action are barred by a disclaimer of warranties clause which provides, “No promises, agreements, representations, or warranties, express or implied by law, shall 'be binding upon the seller unless the same has been made a part of this contract in writing.” No warranties are made a part of the written contract. Lumbrazo v. Woodruff (256 N. Y. 92) gives recognition to the validity of disclaimers of warranty agreements executed under the authority of section 152 of the Personal Property Law. Similarly in Stryker v. Rusch (8 A D 2d 244, 246) the court stated: “The unquestioned right of the parties to a contract to preclude implied warranties by so providing, in language which shall make clear their intent, is supported by many cases.” (See, also, Broderick Haulauge v. Mack-International Motor Truck Corp., 1 A D 2d 649.) Paragraph 11 of the second cause of action alleged in plaintiffs’ complaint being one for fraud should be stricken insofar as it realleges paragraphs 5 through 10 in plaintiffs’ amended complaint. The allegations of such paragraphs are not relevant to the second cause of action pleaded. (Appeal from order of Monroe Special ¡Term denying motion to dismiss complaint.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.