Banner Industries, Inc. v. Schwartz

May 19, 1994
Versions:

—Appeal from order, Supreme Court, New York County (Myriam Altman, J.), entered August 2, 1993, which granted defendants’ motion for summary judgment and dismissed the complaint, is deemed to be an appeal from the subsequent judgment, same court and Justice, entered August 16, 1993 pursuant thereto, and, as such is unanimously affirmed, without costs.

The IAS Court properly dismissed the cause of action for breach of defendants’ duty to conduct a fair auction on the ground that the disclaimers in the parties’ Confidentiality Agreement preclude the existence of any such duty (see, Goodstein Constr. Corp. v City of New York, 80 NY2d 366), and properly dismissed the causes of action for fraud on the ground that the disclaimers were sufficiently specific to bar any claim of reliance on oral misrepresentations (see, Goldberg v KZ 72nd, 171 AD2d 525, 527). Contrary to plaintiffs contentions, the disclaimers do not purport to exculpate defendants for breaches of duties imposed by law or in the public interest and thus are not subject to avoidance for intentional acts, i.e., fraudulent acts (compare, Danann Realty Corp. v Harris, 5 *191NY2d 317, with Gross v Sweet, 49 NY2d 102), and apply to the individual defendants as well as the corporate party to the Confidentiality Agreement (see, Oxford Commercial Corp. v Landau, 12 NY2d 362, 365-366). Concur—Ellerin, J. P., Asch, Rubin, Nardelli and Williams, JJ.