disclaimer clause in New York

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2024"A disclaimer may not bar a General Business Law § 349 claim at the pleading stage unless it utterly refutes plaintiff's allegations, and thus establishes a defense as a matter of law ( see Goshen , 98 NY2d at 326 ; Fink v Time Warner Cable , 714 F3d 739, 742 [2d Cir 2013]).

2024"A disclaimer may not bar a General Business Law § 349 claim at the pleading stage unless it utterly refutes plaintiff's allegations, and thus establishes a defense as a matter of law ( see Goshen , 98 NY2d at 326 ; Fink v Time Warner Cable , 714 F3d 739, 742 [2d Cir 2013]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish] ] a defense” to the counterclaim for fraud (Leon v Martinez, 84 NY2d 83, 88 [1994]).

2017We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish] ] a defense” to the counterclaim for fraud (Leon v Martinez, 84 NY2d 83, 88 [1994]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2017Generally, “[a] claim for fraud is barred by the existence of a specific disclaimer and failure to exercise reasonable diligence” (Steinhardt Group v Citicorp, 272 AD2d 255, 256 [2000]), and a disclaimer clause will preclude a fraud claim only where the clause “specifically disclaims representations concerning the very matter to which the fraud claim relates” (Agristor Leasing-II v Pangburn, 162 AD2d 960, 961 [1990]; see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 137 [2014]; see generally Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2003If a “plaintiff has, in the plainest language announced and stipulated that it is not relying on any representations as to the very matter as to which it now claims it was defrauded [, s]uch a specific disclaimer destroys the allegations in plaintiff’s complaint that the agreement was executed in reliance upon these contrary * * * representations.” (Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]; see also Citibank, N.A. v Plapinger, 66 NY2d 90 [1985] [where the agreement declared that defendants’ guarantee was “absolute and unconditional” and irrespective of the validity of any other

1993Corp., 47 AD2d 363, 365-366 ; see generally, Richardson, Evidence § 609, at 604 [Prince, 10th ed]), it is not admissible to prove the existence of fraud as an inducement to execution of the contract in situations where the challenged agreement contains a specific disclaimer clause which disclaims the making of any representation as to the particular matter concerning which the fraud is now being asserted (see, Danann Realty Corp. v Harris, 5 NY2d 317, 320 ; see also, Citibank v Plapinger, 66 NY2d 90, 94 ; Marine Midland Bank v Cafferty, 174 AD2d 932, 933 ).

2013Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm’s length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v UBS AG, 95 AD3d 185, 208-209 [1st Dept 2012]; AJW Partners LLC v Itronics Inc., 68 AD3d 567, 568 [1st Dept 2009]).

2013Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm’s length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v UBS AG, 95 AD3d 185, 208-209 [1st Dept 2012]; AJW Partners LLC v Itronics Inc., 68 AD3d 567, 568 [1st Dept 2009]).

2013Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm’s length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v UBS AG, 95 AD3d 185, 208-209 [1st Dept 2012]; AJW Partners LLC v Itronics Inc., 68 AD3d 567, 568 [1st Dept 2009]).

2013Where, as here, sophisticated parties expressly state in their heavily negotiated agreement that they are dealing at arm’s length, such a disclaimer bars a claim for negligent misrepresentation, because it precludes a finding of a special relationship (see HSH Nordbank AG v UBS AG, 95 AD3d 185, 208-209 [1st Dept 2012]; AJW Partners LLC v Itronics Inc., 68 AD3d 567, 568 [1st Dept 2009]).

2024"A disclaimer may not bar a General Business Law § 349 claim at the pleading stage unless it utterly refutes plaintiff's allegations, and thus establishes a defense as a matter of law ( see Goshen , 98 NY2d at 326 ; Fink v Time Warner Cable , 714 F3d 739, 742 [2d Cir 2013]).

2024"A disclaimer may not bar a General Business Law § 349 claim at the pleading stage unless it utterly refutes plaintiff's allegations, and thus establishes a defense as a matter of law ( see Goshen , 98 NY2d at 326 ; Fink v Time Warner Cable , 714 F3d 739, 742 [2d Cir 2013]).

2003Park v Chemical Bank, 114 AD2d 838, 839 [1985] [internal quotation marks omitted]).

1989Park v Chemical Bank, 114 AD2d 838 [2d Dept]; Yurish v Sportini, 123 AD2d 760 [2d Dept]).

1990It quotes Schumaker v Mather ( 133 NY 590, 596 ), which states that "if the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.” Where a party has no knowledge of a latent condition and no way of discovering the existence of that condition in the exercise of rea

1989Given such an issue, IAS ruled, even the specific disclaimer clause invoked by defendant was ineffective to preclude evidence of oral misrepresentations (citing Ward v Hanley, 130 AD2d 742 [2d Dept]; see also, Tahini Invs. v Bobrowsky, 99 AD2d 489 [2d Dept]; Hi Tor Indus.

2004Contrary to the plaintiffs contention, the general language of the disclaimer clause in the sales agreement did not preclude Filmax’s defense of fraud in the inducement or preclude its introduction of parol evidence to establish its reliance on certain representations made by the plaintiff (see Sabo v Delman, 3 NY2d 155, 161 [1957]; DiFilippo v Hidden Ponds Assoc., 146 AD2d 737, 738 [1989]).

1995(Citibank v Plapinger, 66 NY2d 90 [1985], rearg denied 67 NY2d 647 ; Danann Realty Corp. v Harris, 5 NY2d 317 [1959]; Sabo v Delman, 3 NY2d 155 [1957]; 6 Corbin, Contracts § 1319; 5 Williston, Contracts § 811 [3d ed]; 1A Warren’s Weed, New York Real Property, Contracts, § 15.03.) Whether a clause is sufficiently specific so as to bar oral proof is a question to be resolved by the court.

1989Park v Chemical Bank, 114 AD2d 838 [2d Dept]; Yurish v Sportini, 123 AD2d 760 [2d Dept]).

1987As the defendant contends, on a case such as this one involving allegations of fraud, the seller may not invoke even a specific disclaimer clause in order to preclude evidence or oral misrepresentations if the facts allegedly misrepresented are peculiarly within the seller’s knowledge (Yurish v Sportini, 123 AD2d 760, 761-762; Hi Tor Indus.

2021The defendant must do more than disclaim liability generally; instead, a disclaimer must address the alleged deceptive conduct precisely, so as to eliminate any possibility that a reasonable consumer would be misled (id.; see also Gaidon, 94 NY2d at 345 ).3 Furthermore, where the overall impression of the representations is misleading (notwithstanding the disclaimer), the disclaimer is not a defense as a matter of law (see Goshen, 98 NY2d at 326 ; Delgado v Ocwen Loan Servicing, LLC, 2014 WL 4773991 , at *9 [EDNY 2014]).

2021The defendant must do more than disclaim liability generally; instead, a disclaimer must address the alleged deceptive conduct precisely, so as to eliminate any possibility that a reasonable consumer would be misled (id.; see also Gaidon, 94 NY2d at 345 ).3 Furthermore, where the overall impression of the representations is misleading (notwithstanding the disclaimer), the disclaimer is not a defense as a matter of law (see Goshen, 98 NY2d at 326 ; Delgado v Ocwen Loan Servicing, LLC, 2014 WL 4773991 , at *9 [EDNY 2014]).

2017However, the cause of action alleging fraudulent inducement was properly dismissed, based upon the disclaimer clause in the contract (see DiBuono v Abbey, LLC, 95 AD3d 1062, 1064 [2012], citing Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]).

2015Co. of N.Y., 84 AD3d 511, 512 [1st Dept 2011], lv denied 17 NY3d 709 [2011]); thus, its attempt, as a judgment creditor of Sanita, to attack the disclaimer on the doctrine of equitable estoppel, is unavailing, as Sanita has failed to establish prejudice and reliance (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [1st Dept 2005]).

2015Co. of N.Y., 84 AD3d 511, 512 [1st Dept 2011], lv denied 17 NY3d 709 [2011]); thus, its attempt, as a judgment creditor of Sanita, to attack the disclaimer on the doctrine of equitable estoppel, is unavailing, as Sanita has failed to establish prejudice and reliance (see River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 [1st Dept 2005]).

2014Although the Appellate Division did not cite section 3420 (d) (2) in its decision, the court essentially recited the statute’s disclaimer requirement when it stated that defendants had an “obligation” to disclaim coverage based on late notice “as soon as reasonably possible after first learning of the . . . grounds for disclaimer” (104 AD3d at 582).

2009Plaintiff argues further that it was incumbent upon defendant to make use of available means, such as the home inspection, to ascertain the true physical condition of the property (see Janian v Barnes, 294 AD2d at 788 ; Cetnar v Kinowski, 263 AD2d at 844 ; Long v Fitzgerald, 240 AD2d 971, 973-974 [1997]).

2009In response, plaintiff contends that the specific disclaimer clause in the real property contract served as a bar to admitting parol evidence of any such oral misrepresentations and, as such, is sufficient to defeat defendant’s claims (see Danann Realty Corp. v Harris, 5 NY2d 317, 320-323 [1959]; Janian v Barnes, 294 AD2d 787, 788 [2002]; Cetnar v Kinowski, 263 AD2d 842, 843 [1999], lv dismissed 94 NY2d 872 [2000]).

2009Plaintiff argues further that it was incumbent upon defendant to make use of available means, such as the home inspection, to ascertain the true physical condition of the property (see Janian v Barnes, 294 AD2d at 788 ; Cetnar v Kinowski, 263 AD2d at 844 ; Long v Fitzgerald, 240 AD2d 971, 973-974 [1997]).

2009Contrary to plaintiffs arguments, however, a specific disclaimer clause cannot serve to defeat a claim of fraud if the seller owes the buyer a fiduciary duty but nonetheless breaches that duty by failing to “disclose any information that could reasonably bear on [the buyer’s] consideration of [the transaction]” (Dubbs v Stribling & Assoc., 96 NY2d 337, 341 [2001]; see Salm v Feldstein, 20 AD3d 469, 470 [2005]; Blue Chip Emerald v Allied Partners, 299 AD2d 278, 279-280 [2002]; see also Littman v Magee, 54 AD3d 14, 17 [2008]; cf. Rector v Calamus Group, Inc., 17 AD3d 960, 961 [2005]; Slavin v Ha

2009Under such circumstances, the contract of sale itself—including the specific disclaimer clause—would be voidable because “a fiduciary cannot by contract relieve itself of the fiduciary obligation of full disclosure by withholding the very information the beneficiary needs in order to make a reasoned judgment whether to agree to the proposed contract” (Blue Chip Emerald v Allied Partners, 299 AD2d at 280 ).