114 A.D.2d 680 | N.Y. App. Div. | 1985
Appeal from an order of the Supreme Court at Special Term (Ingraham, J.), entered
On April 27, 1984, plaintiffs entered into a contract to purchase defendants’ one-family home located in the Village of Unadilla, Otsego County, for $38,000. By its terms, the contract was contingent on plaintiffs assuming an existing mortgage in the amount of $21,000 held by the Mechanic’s Exchange Savings Bank (the Bank). At the closing held on June 22, 1984, defendants signed a document entitled "Certificate by Seller or Owner: Rural Water and Septic System” (the certificate) which the mortgagee bank required. The certificate read in pertinent part:
"B. That the septic system for said real property consists of: leach field & tank
"C. That the aforesaid water well and septic system are adequate and functioning properly and are within the boundary lines of the property.
"This certification is made by the undersigned knowing and intending that the Mechanic’s Exchange Savings Bank will rely thereon in approving or making a mortgage loan on said property.”
Shortly after the conveyance, plaintiffs discovered that the septic system consisted of a cesspool, not a tank and leach field, and that an oil tank on the premises had a large hole in it. After replacing the septic system at a cost of $1,426.75 and the oil tank at a cost of $348.03, plaintiffs commenced the instant action seeking damages for fraud. Specifically, plaintiffs alleged breach of the June 22, 1984 certificate and alleged that defendants fraudulently misrepresented the suitability of the septic system and the oil tank. Defendants’ motion to dismiss for failure to state a cause of action or, alternatively, for removal to the Justice Court of the Village of Unadilla was denied in its entirety. This appeal ensued.
Initially, we note that while defendants repeatedly refer in their brief to Special Term’s denial of their request for "summary judgment”, the record fails to indicate that the court treated the instant motion as a motion for summary judgment (see, CPLR 3211 [c]). Thus, our inquiry is whether any provable cause of action may be gleaned from the complaint (see, Ecker v Wright, 69 AD2d 1012).
Turning to the merits, defendants maintain that since the certificate was made only to the Bank, plaintiffs were not entitled to rely on it. Special Term, relying on Tindle v
Next, defendants claim that the contractual "as is” and general "merger” clauses
Defendants also claim that the Statute of Frauds prevents plaintiffs from introducing oral representations as to the quality of the oil tank. The Statute of Frauds (General Obligations Law § 5-703) applies to representations concerning real estate, but will not be utilized to perpetrate a fraud. In the event that plaintiffs demonstrate a fraudulent misrepresentation relating to the oil tank, the Statute of Frauds will not serve to defeat the claim.
Finally, given the nature of the action and the fact that defendants no longer reside in the Village of Unadilla, Special Term did not abuse its discretion by denying defendants’ request for a change of venue to the Justice Court of the Village of Unadilla (see, Nardone v McQueeney, 25 AD2d 900).
Order affirmed, without costs. Main, J. P., Casey, Weiss, Yesawich, Jr., and Levine, JJ., concur.
These provisions are as follows:
"9. CONDITION OF PREMISES:
The Purchaser has inspected the buildings standing on the premises and the personal property included in this sale and is thoroughly acquainted with their condition and agrees to take title "as is” and in their present condition subject to reasonable use, wear, and natural deterioration between the date thereof and the transfer of title * * *
"14. entire agreement:
This contract contains all agreements of the parties thereto. There are no promises, agreements, terms, conditions, warranties, representations or statements other than contained herein. This agreement shall apply to and bind the heirs, legal representatives, successors and assigns of the respective parties.”