| Rigney v McCabe |
| 2007 NY Slip Op 06657 [43 AD3d 896] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Barbara Rigney, Appellant, v Mary McCabe,Respondent. |
—[*1] Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, N.Y. (Stuart E. Kahan andLois N. Rosen of counsel), for respondent.
In an action, inter alia, to recover damages for fraudulent inducement, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Nastasi, J.), entered June 15, 2006, as granted those branches of the defendant's motion whichwere to dismiss the complaint pursuant to CPLR 3211 (a) (1) and for reasonable attorney's fees,costs, and expenses.
Ordered that the order is affirmed, with costs.
The Supreme Court properly dismissed the plaintiff's causes of action sounding in fraud.Both of those causes of action are predicated on alleged oral representations made by thedefendant before the conveyance. As such, they were clearly barred by the specific disclaimerprovisions contained in the contract of sale (see Danann Realty Corp. v Harris, 5 NY2d317, 320 [1959]; Roland v McGraime,22 AD3d 824 [2005]; Fabozziv Coppa, 5 AD3d 722, 723-724 [2004]). Furthermore, the misrepresentation allegedlyrelied upon by the plaintiff was not a matter within the peculiar knowledge of the defendant. Thefact that the house was exposed to flooding could have been, and indeed was, discovered by theplaintiff through the exercise of due diligence (see Danann Realty Corp. v Harris, supra; Kayv Pollak, 305 AD2d 637 [2003]; Cohen v Cerier, 243 AD2d 670, 672 [1997];Superior Realty Corp. v Cardiff Realty, 126 AD2d 633 [1987]; see also New YorkUniv. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; cf. Black v Chittenden,69 NY2d 665, 668 [1986]; Tahini Invs. v Bobrowsky, 99 AD2d 489 [1984]).[*2]
The Supreme Court also properly determined that thedefendant was entitled to reasonable attorney's fees, costs, and expenses pursuant to the contractof sale since the instant lawsuit was "an[ ] action or proceeding arising out of th[e] contract"(see O'Brien v Moszynski, 101 AD2d 811 [1984]).
The plaintiff's remaining contention is without merit. Spolzino, J.P., Santucci, Florio andAngiolillo, JJ., concur.