McFarland v Opera Owners, Inc.

McFarland v Opera Owners, Inc. 2012 NY Slip Op 00729 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Mazzarelli, J.P., Friedman, Catterson, Renwick, Román, JJ.
6680 650916/10

[*1]John McFarland, et al., Plaintiffs-Appellants,

v

Opera Owners, Inc., Defendant-Respondent.




William M. Pinzler, New York, for appellants.
White Fleischner & Fino, LLP, New York (Evan A. Richman
of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 18, 2011, which granted defendant's motion for summary judgment dismissing the complaint, but without prejudice as to the first and second causes of action, unanimously affirmed, with costs.

The IAS court properly dismissed the breach of contract claim because plaintiffs concededly failed to comply with express conditions precedent to the contract (see Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]).

The court properly dismissed the fraud claim as barred by the merger clause, "as is" clause, and other disclaimers (see Rivietz v Wolohojian, 38 AD3d 301 [2007]). Moreover, plaintiffs' allegations of defendant's intent to breach the contract are insufficient to state a cause of action for fraud (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Board of Mgrs. of the Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d 581, 582 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK