Benitez v. Martinez , 1 A.D.2d 959 ( 1956 )

In an action to recover the amount paid on the execution of a contract for the sale of real property, to rescind the contract, and to impress a lien upon the property involved, the appeal is from an order granting a motion for summary judgment dismissing the complaint pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the appellant submitted proof sufficient to create an issue of fact as to the conclusiveness of the documentary evidence, consisting of the written contract of sale, relied upon by the respondent. Appellant alleged claims of fraud in respect to the soundness of the premises, the inspection of two of the apartments in the premises, and as to the physical and structural conditions of one of said apartments. Such claims, if established, would vitiate the entire writing, including the “ no representations ”, “ as is ”, and “ no oral-change ” provisions, as well as the express warranty therein contained. (Massler v. Smit, 279 App. Div. 941; Laczko v. Bear Ridge Lake Corp., 280 App. Div. 813; Hellinger v. Abeles, 283 App. Div. 726; Anides v. Kahar Realty Corp,, 283 App. Div. 822.) Upon the papers before us, no denials of appellant’s claims were made by the respondent, nor by her salesman and broker to whom appellant attributed the active misrepresentations recounted. In addition, the purchase price of $12,000 set forth in the contract of sale seemingly presents an ambiguity which may require an explanation at the trial for the reason that the payments detailed to be made by the vendee total but $11,500. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.