Black Rock, Inc. v Z Best Car Wash, Inc.

Black Rock, Inc. v Z Best Car Wash, Inc. 2006 NY Slip Op 01568 [27 AD3d 409] March 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

Black Rock, Inc., Appellant,
v
Z Best Car Wash, Inc., Respondent.

—[*1]

In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated March 29, 2005, which denied the motion.

Ordered that the order is affirmed, with costs.

In response to the plaintiff's prima facie showing of its entitlement to summary judgment based upon its presentment of the note and proof of the defendant's default, the defendant demonstrated the existence of a triable issue of fact. Contrary to the plaintiff's contention, the general language of the merger clause in the subject agreement of sale did not preclude the defendant's defense of fraud in the inducement or the defendant's use of parol evidence to establish its reliance upon certain representations allegedly made by the plaintiff (see Green Apple Mgt. Corp. v Aronis, 22 AD3d 462 [2005]; Cleangen Corp. v Filmax Corp., 3 AD3d 468 [2004]). Accordingly, the Supreme Court properly denied summary judgment to the plaintiff. Schmidt, J.P., Adams, Luciano and Lifson, JJ., concur.