| Group 88, Inc. v AGA Capital NY, Inc. |
| 2009 NY Slip Op 01083 [59 AD3d 493] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Group 88, Inc., et al., Appellants, v AGA Capital NY, Inc.,et al., Respondents. |
—[*1] Barry A. Wadler, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Schmidt, J.), entered October 26, 2007, which,upon an order of the same court dated September 11, 2007, granting the defendants' motion forsummary judgment dismissing the complaint, is in favor of the defendants and against themdismissing the complaint.
Ordered that the notice of appeal from the order is deemed to be a notice of appeal from thejudgment (see CPLR 5512 [a]), and it is further,
Ordered that the judgment is affirmed, with costs.
The plaintiffs commenced this action, inter alia, to recover damages for breach of contract,in which they alleged that the defendants promised to obtain a loan for them on certain terms, butfailed to do so. The plaintiffs sought the services of the defendants, who are licensed mortgagebrokers, to obtain financing in connection with the plaintiffs' purchase of nine cooperativeapartments. In connection with providing these services, the plaintiffs executed a writtenagreement which provided that the defendants could not guarantee any particular loaninstrument. The first financial institution to which the defendants submitted the plaintiffs'application rejected it. The defendants then obtained a loan commitment for the purchase fromanother financial institution, which was accepted by the plaintiffs.[*2]
The defendants made a prima facie showing of theirentitlement to judgment as a matter of law by showing that the available proof established theirdefense to the plaintiffs' allegations (see CPLR 3212 [b]; Courtney v Port Auth. of N.Y. & N.J.,34 AD3d 716 [2006]; cf. Higen Assoc. v Serge El. Co., 190 AD2d 712 [1993]). Theexpress terms of the parties' agreement contradict the plaintiffs' allegations (see Weiss v TD Waterhouse, 45 AD3d763, 764-765 [2007]). In addition, the plaintiffs' claim that they reasonably relied on thedefendants' alleged oral misrepresentation as to the terms of the proposed financing was negatedby the provision in the agreement which expressly stated that the defendants could not guaranteea loan on any particular terms (see Okov Walsh, 28 AD3d 529 [2006]; Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363 [2004]). Inopposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Dillon, Angiolillo and Eng, JJ., concur.