— In an action to recover on a promissory note,
Judgment affirmed, with costs.
The evidence adduced at this extended trial supports the conclusion of the trial court, as trier of the facts, that defendant failed to establish by clear and convincing evidence that in purchasing plaintiff’s business it justifiably relied upon oral misrepresentations made by plaintiff as to the capabilities of the equipment being transferred (Simcuski v Saeli, 44 NY2d 442). Defendant was aware from early on in the negotiations that certain of the equipment was not performing up to its represented capacity, yet it failed to make adequate investigations or secure guarantees before closing the sale of the business to insure that the equipment being sold was sufficient to meet its needs. These facts and circumstances support the trial court’s finding that it was unreasonable for defendant to rely upon the representations (Edmar Creations v Instrument Systems Corp., 74 AD2d 632). Lazer, J. P., Brown, Boyers and Eiber, JJ., concur.