De Bell v. Nothnagle Florida Realty Corp. 24 A.D.2d 825

Order unanimously reversed, with costs, and motion denied, with $10 costs. Memorandum: The lower court granted summary judgment in favor of defendant dismissing the complaint on the ground that the statement in the contract, that the written instrument constituted the entire agreement and that no representations had been made to induce plaintiff to enter into the contract except such as were set forth in it, prevented plaintiff from maintaining this action for fraud. We do not agree. The existence of an omnibus statement of merger and disclaimer, such as is in the contract executed by plaintiff, is not a bar to showing fraud either in the inducement or in the execution of the contract. (Danann Realty Corp. v. Harris, 5 N Y 2d 317, 320.) Since there is a genuine and substantial issue of fact presented by the pleadings concerning the making of the alleged misrepresentations, plaintiff also is not entitled to summary judgment (Falk v. Goodman, 7 N Y 2d 87, 91). (Appeal from order of Monroe County Court, Special Term, granting defendant Nothnagle Florida Realty Corp.’s motion for summary judgment dismissing the complaint upon the merits.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecchio, JJ.