Ka Foon Lo v. Curis, 29 A.D.3d 525 (N.Y. App. Div. 2006). · Go Syfert
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Ka Foon Lo v. Curis, 29 A.D.3d 525 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2007–2013 · 2 courts · …any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale would survive the delivery of the deed at p. 526 ✓
29 citation events (29 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) Rosner v. Bankers Std. Ins. Co.
N.Y. App. Div. · 2019 · confidence medium
However, once title to the property closed and the deed was delivered, "any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger" since there was no "clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed" ( Ka Foon Lo v Curis , 29 AD3d 525, 526 [internal quotation marks omitted]).
discussed Cited as authority (rule) Josovich v. Ceylan
N.Y. App. Div. · 2015 · confidence medium
“Since title to the property had closed and the deed was delivered, ‘any claims [they] might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed’ ” (Bibbo *573 v 31-30, LLC, 105 AD3d 791 , 792 [2013], quoting Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]; see Rojas v Paine, 101 AD3d 843 [2012]; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115 [2008]).
discussed Cited as authority (rule) TIAA Global Investments, LLC v. One Astoria Square LLC
N.Y. App. Div. · 2015 · confidence medium
The merger doctrine in a real estate transaction provides that once the deed is delivered, its terms are all that survive and the purchaser is barred from prosecuting any claims arising out of the contract (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2d Dept 2006]).
discussed Cited as authority (rule) DeLuca v. Pecoraro
N.Y. App. Div. · 2013 · confidence medium
In any event, both the merger doctrine (see Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]) and the six-year statute of limitations for breach of contract (see CPLR 213 [2]) preclude reliance on any defense premised on the 1982 agreement.
discussed Cited as authority (rule) DeLuca v. Pecoraro
N.Y. App. Div. · 2013 · confidence medium
In any event, both the merger doctrine (see Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]) and the six-year statute of limitations for breach of contract (see CPLR 213 [2]) preclude reliance on any defense premised on the 1982 agreement.
discussed Cited as authority (rule) Bibbo v. 31-30, LLC (2×)
N.Y. App. Div. · 2013 · confidence medium
Since title to the property had closed and the deed was delivered, “any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed” (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006] [internal quotation marks omitted]; see Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115 [2008]; Davis v Weg, 104 AD2d 617, 619 [1984]).
discussed Cited as authority (rule) Bibbo v. 31-30, LLC (2×)
N.Y. App. Div. · 2013 · confidence medium
Since title to the property had closed and the deed was delivered, “any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed” (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006] [internal quotation marks omitted]; see Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115 [2008]; Davis v Weg, 104 AD2d 617, 619 [1984]).
discussed Cited as authority (rule) Rojas v. Paine
N.Y. App. Div. · 2012 · confidence medium
Since title to the property had closed and the deed was delivered, in the absence of any clear intent by the parties that a relevant provision of the contract of sale would survive delivery of the deed, any claims the plaintiffs might have had arising from the contract of sale were extinguished by the doctrine of merger (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 662-663 [2011]; Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]; Crowley Mar.
discussed Cited as authority (rule) Rojas v. Paine
N.Y. App. Div. · 2012 · confidence medium
Since title to the property had closed and the deed was delivered, in the absence of any clear intent by the parties that a relevant provision of the contract of sale would survive delivery of the deed, any claims the plaintiffs might have had arising from the contract of sale were extinguished by the doctrine of merger (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 662-663 [2011]; Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]; Crowley Mar.
discussed Cited as authority (rule) Perez-Faringer v. Heilman
N.Y. App. Div. · 2012 · confidence medium
In addition, since title to the property had closed and the deed was delivered, the doctrine of merger extinguished any claim the plaintiffs may have had regarding the contract of sale (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 662 [2011]; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115 [2008]; Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518, 521 [2007]; Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]).
discussed Cited as authority (rule) Lunal Realty, LLC v. DiSanto Realty, LLC
N.Y. App. Div. · 2011 · confidence medium
Since title to the property had closed and the deed was delivered, “any claims the plaintiffis] might have had arising from the contract of sale were extinguished by the doctrine of merger” since there was no “clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed” (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006] [internal quotation marks omitted]; see Crowley Mar.
cited Cited as authority (rule) Marcantonio v. Picozzi
N.Y. App. Div. · 2010 · confidence medium
Constr., Inc., 56 AD3d 526 [2008]; Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]; Sforza v Health Ins.
discussed Cited as authority (rule) DiPrima v. Della Croce
N.Y. App. Term. · 2007 · confidence medium
Generally, where title to property has closed and the deed has been delivered, “any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed” (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006] [internal quotation marks and citations omitted]).
cited Cited as authority (rule) Camarda Development Co. v. Willow Ridge at Carmel, Inc.
N.Y. App. Div. · 2007 · signal: cf. · confidence medium
Corp., 172 AD2d 826 [1991]; cf. Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]).
examined Cited "see" Brooklyn Tabernacle v. Thor 180 Livingston, LLC (3×)
N.Y. App. Div. · 2025 · signal: see · confidence high
Vig Props., LLC v Rahimzada , 213 AD3d 871, 874 [internal quotation marks omitted]; see Ka Foon Lo v Curis , 29 AD3d 525, 526), unless there is a "clear intent evidenced by the parties that a particular provision will survive delivery of the deed or where there is a collateral undertaking" ( Guoba v Sportsman Props., Inc. , 200 AD3d 658, 660 [internal quotation marks omitted]; see 98 Gates Ave.
cited Cited "see" R. Vig Props., LLC v. Rahimzada
N.Y. App. Div. · 2023 · signal: see · confidence high
LLC , 127 AD3d 75, 85 ; see Ka Foon Lo v Curis , 29 AD3d 525, 526 ).
Retrieving the full opinion text from the archive…
Ka Foon Lo
v.
George Curis
Appellate Division of the Supreme Court of the State of New York.
May 2, 2006.
29 A.D.3d 525
Cited by 21 opinions  |  Published

In an action, inter alia, to recover damages for fraud and breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Bangs County (Lewis, J.), as denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

[*526] Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

This action involves the sale of an apartment building by the appellants to the plaintiff. The plaintiff, asserting, inter alia, causes of action to recover damages for fraud and breach of contract, alleged that the appellants falsely represented the monthly rent they were entitled to receive for two of the apartments and that one of the two apartments was not subject to rent control laws.

The cause of action to recover damages for fraud should have been dismissed. In actuality it is a cause of action to recover damages for breach of contract, inasmuch as the alleged falsity was a provision of the contract of sale. “ ‘Merely alleging scienter in a cause of action to recover damages for breach of contract, unless the representations alleged to be false are collateral or extraneous to the terms of the agreement, does not convert a breach of contract cause of action into one sounding in fraud’ ” (Del Ponte v 1910-12 Ave. U. Realty Corp., 7 AD3d 562, 562 [2004], quoting Noufrios v Murat, 193 AD2d 791, 792 [1993]; see Lakehill Assoc., Inc. v 6077 Jericho Turnpike Realty Corp., 18 AD3d 506, 508 [2005]; Cerabono v Price, 7 AD3d 479, 480 [2004]; Breco Envtl. Contrs. v Town of Smithtown, 307 AD2d 330, 332 [2003]; cf. Banc of Am. Commercial Fin. Corp. v Issacharoff, 188 Misc 2d 790, 794-796 [2000]).

The plaintiff also failed to state a cause of action to recover damages for breach of contract. Because title to the property had closed and the deed was delivered, “any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a ‘clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed’ ” (Crowley Mar. Assoc. v Nyconn Assoc., 292 AD2d 334, 335 [2002], quoting Davis v Weg, 104 AD2d 617, 619 [1984]; see Noufrios v Murat, supra at 791), Paragraph 30 of the contract rider provided that the allegedly false representations made in the contract were simply conditions to the plaintiffs obligation to close title. Therefore, the parties’ did not intend that the provision relied upon by the plaintiff would survive the closing. Indeed, paragraph 21 of the rider overruled any contrary provision in the body of the contract specifying such survival.

Since the remaining causes of action are based upon the fraud and breach of contract causes of action, those causes of action also should have been dismissed. Crane, J.P., Krausman, Luciano and Rivera, JJ., concur.