Masiach v 420 W. Invs., LLC

Masiach v 420 W. Invs., LLC 2013 NY Slip Op 00989 Decided on February 14, 2013 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 14, 2013
Sweeny, J.P., Saxe, DeGrasse, Abdus-Salaam, Feinman, JJ.
9227 116008/09

[*1]Guy Masiach, Plaintiff-Appellant,

v

420 West Investors, LLC, Defendant-Respondent.




Andrew J. Spinnell, New York, for appellant.
Starr Associates LLP, New York (Shaun W. Pappas of counsel),
for respondent.

Judgment, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2012, dismissing the complaint pursuant to an order, same court and Justice, entered June 21, 2011, which granted defendant's cross motion for summary judgment dismissing the complaint, and denied plaintiff's motion to strike or preclude as moot, unanimously affirmed, with costs.

We find that the express language of the offering plan, incorporated by reference into the purchase agreement entered into by the parties, limits defendant's obligation under the purchase agreement to making repairs, or alternatively, recompensing for repairs made (see 430 W. 23rd St. Tenants Corp. v 23rd Assoc., 155 AD2d 237, 238 [1st Dept 1989]). To construe the purchase agreement otherwise would, in effect, render the express language of the offering plan meaningless (see Diamond Castle Partners IV PRC, L.P. v IAC/InterActiveCorp, 82 AD3d 421, 422 [1st Dept 2011]). Accordingly, plaintiff's claims seeking rescission of the purchase agreement and monetary damages for loss of rental income are barred by the express language of the offering plan.

In addition, to the extent plaintiff argues that defendant fraudulently misrepresented that it would make repairs under the agreement, such an allegation is insufficient to state a claim for fraudulent inducement (see Sass v TMT Restoration Consultants Ltd., 100 AD3d 443, 443 [1st Dept 2012]).

We have considered plaintiff's remaining arguments and find them unavailing.

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

ENTERED: FEBRUARY 14, 2013

CLERK