merger doctrine in New York

2025Additionally, the merger doctrine does not apply to the kidnapping charge because the asportation of the victim was not minimal and the "manner of detention" was "egregious" ( People v Gonzalez , 80 NY2d 146, 153 [1992]).

2025Additionally, the merger doctrine does not apply to the kidnapping charge because the asportation of the victim was not minimal and the "manner of detention" was "egregious" ( People v Gonzalez , 80 NY2d 146, 153 [1992]).

2024The "guiding principle" of the merger doctrine inquiry is whether the acts of restraint or abduction were " 'so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them' " ( id. at 153 , quoting People v Cassidy , 40 NY2d 763, 767 [1976]).

2024Given that each crime was discrete, and the attempted kidnapping was not merely "the incidental means employed to facilitate the commission of" the sexual abuse and assault ( People v Cassidy , 40 NY2d 763, 768 [1976]), the merger doctrine does not apply ( see People v Smith , 47 NY2d 83, 87-88 [1979]).

2025Under Section 4.06 (a), defendants warranted that "there has not been any . . . event, occurrence or development that . . . could reasonably be expected to have . . . a Material Adverse Effect." And under Section 4.25, defendants warranted that "[t]here is no fact known to any Seller regarding any Seller or the Business . . . that materially adversely affects or threatens either of the Business, the Purchased Assets, or the prospects, financial condition, or results of operations of the Business that has not been set forth in this Agreement or a related Schedule." A merger clause precludes rel

2025"The purpose of a merger clause is to require the full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to alter, vary or contradict the terms of the writing" ( Jarecki v Shung Moo Louie , 95 NY2d 665, 669 [2001] [citation omitted]).

2024Corp. v Wal-Mart Stores , 89 NY2d 594, 599 ).

2016The Court explained that the purpose of a merger clause is to give full effect to the parol evidence rule, which bars extrinsic evidence tending to vary the terms of the agreement in which the merger clause is included ( id. at 599-600 ).

2007However, the merger doctrine precluded a finding with regard to the count involving unlawful imprisonment where the criminal sexual act and the imprisonment were simultaneous (see People v Geaslen, 54 NY2d 510 [1981]; Matter ofWanji W., 305 AD2d 690 , 691 [2003]; People v Credle, 272 AD2d 407 [2000]).

2007However, where, as here, the criminal sexual act and the imprisonment were essentially simultaneous and inseparable, and any restriction of the victim’s movements was wholly incidental to the commission of the criminal sexual act, the merger doctrine precludes a finding with respect to the unlawful imprisonment count (see Matter of Bradley M., 36 AD3d 815 [2007]; Matter of Wanji W., 305 AD2d 690 , 692 [2003]; cf. People v Cain, 76 NY2d 119, 124-125 [1990]; People v Geaslen, 54 NY2d 510, 516-517 [1981]; People v Black, 189 AD2d 883, 884 [1993]).

2024Given that each crime was discrete, and the attempted kidnapping was not merely "the incidental means employed to facilitate the commission of" the sexual abuse and assault ( People v Cassidy , 40 NY2d 763, 768 [1976]), the merger doctrine does not apply ( see People v Smith , 47 NY2d 83, 87-88 [1979]).

2017Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree (see People v Gonzalez, 80 NY2d at 153 ; People v Perez, 93 AD3d 1032, 1033 [2012], lv denied 19 NY3d 1000 [2012]), we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment (see People v Cassidy, 40 NY2d at 767-768 ; People v James, 114 AD3d

2019However, 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]).

2015The 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]).

2017“The merger doctrine is intended to preclude conviction for kidnapping or unlawful imprisonment ‘based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” (People v Crosdale, 103 AD3d 749 , 751 [2013], quoting People v Bussey, 19 NY3d 231, 237 [2012]; see People v Hanley, 20 NY3d 601, 605 [2013]; People v Cain, 76 NY2d 119, 124-125 [1990]; People v Cassidy, 40 NY2d 763, 767 [1976]; People v Mateo, 148 AD3d 727, 728 [2017]; P

2017The merger doctrine bars convictions for kidnapping “based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d 763, 767 [1976]; accord People v Bussey, 19 NY3d 231, 237 [2012]; People v Cain, 76 NY2d 119, 125 [1990]).

2024Moreover, where an agreement contains a specific disclaimer of oral representations and a merger clause – as the Offering Plan and purchase agreements indisputably do – a party cannot rely on extra-contractual representations to support a misrepresentation claim (see, Danann Realty Corp. v Harris, 5 NY2d 317, 320-21 [1959] [fraud claim dismissed based upon disclaimer 652284/2022 THE BOARD OF MANAGERS OF THE 135 WEST 52ND STREET CONDOMINIUM Page 9 of 15 vs. 135 WEST 52ND STREET OWNER LLC ET AL Motion No. 001 002 004 005 9 of 15 [* 9] INDEX NO. 652284/2022 NYSCEF DOC.

2018Here, the merger clause contained in paragraph 16.1 is a general merger clause, i.e., an " omnibus statement that the written instrument embodies the whole agreement' " and thus does not "disclaim[] the existence of or reliance upon specified representations" and does not preclude plaintiffs' claim that they were "defrauded into entering the contract in reliance on [certain alleged] [mis]representations" ( id. , quoting Danann Realty Corp. v Harris , 5 NY2d 317, 320 [1959]; see Lieberman v Greens at Half Hollow, LLC , 54 AD3d 908, 909 [2d Dept 2008]; Stephens v Sponholz, 251 AD2d 1061, 1061 [4

2024The position advocated by the People would undermine the entire purpose of the merger doctrine, which was "to rectify th[e] problem of overcharging," by permitting a prosecutor "to charge a defendant with kidnapping in order to expose [defendant] to the heavier penalty even if the underlying criminal conduct constituted a robbery, rape or some other offense carrying a lesser term of incarceration" ( Hanley , 20 NY3d at 605 [internal quotation marks omitted]).

2024The merger doctrine applies when acts constituting the crime of kidnapping are "so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them" ( People v Gonzalez , 80 NY2d 146, 153 [1992] [internal quotation marks and citation omitted]; see People v Hanley , 20 NY3d at 605-606 ).

2016Moreover, the merger doctrine was not intended to apply to “kidnapping abductions designed to . . . accomplish murder” (People v Miles, 23 NY2d 527, 539 [1969], cert denied 395 US 948 [1969]; see People v Kalyon, 142 AD2d 650, 650-651 [1988], lv denied 72 NY2d 1046 [1988]).

1998Were we to review them, we would find that “[s]ince the kidnapping could be viewed as a kidnapping with intent to accomplish murder, the merger doctrine is simply unavailable” (People v Kalyon, 142 AD2d 650, 651 , lv denied 72 NY2d 1046 ; see also, People v Miles, 23 NY2d 527, 539 , cert denied 395 US 948 ).

2026Contrary to the plaintiffs' contention, evidence of prior or contemporaneous oral representations that Xu would continue to have an ownership interest in the business is not admissible to contradict or vary the parties' integrated writing (<i>see</i> <i>Marine Midland Bank-S. v Thurlow</i>, 53 NY2d at 387 ; <i>Albert v Afanador</i>, 237 AD3d at 1014), and such evidence would effectively negate the asset purchase agreement's merger clause (<i>see</i> <i>Schron v Troutman Sanders LLP</i>, 20 NY3d at 437 ; <i>Klein v Signature Bank, Inc.</i>, 204 AD3d 892 , 896).</p> <p>The Supreme Court also pro

2026Contrary to the plaintiffs' contention, evidence of prior or contemporaneous oral representations that Xu would continue to have an ownership interest in the business is not admissible to contradict or vary the parties' integrated writing ( see Marine Midland Bank-S. v Thurlow , 53 NY2d at 387; Albert v Afanador , 237 AD3d at 1014), and such evidence would effectively negate the asset purchase agreement's merger clause ( see Schron v Troutman Sanders LLP , 20 NY3d at 437; Klein v Signature Bank, Inc. , 204 AD3d 892, 896).

2017“The merger doctrine is intended to preclude conviction for kidnapping or unlawful imprisonment ‘based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” (People v Crosdale, 103 AD3d 749 , 751 [2013], quoting People v Bussey, 19 NY3d 231, 237 [2012]; see People v Hanley, 20 NY3d 601, 605 [2013]; People v Cain, 76 NY2d 119, 124-125 [1990]; People v Cassidy, 40 NY2d 763, 767 [1976]; People v Mateo, 148 AD3d 727, 728 [2017]; P

2017The merger doctrine bars convictions for kidnapping “based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d 763, 767 [1976]; accord People v Bussey, 19 NY3d 231, 237 [2012]; People v Cain, 76 NY2d 119, 125 [1990]).

2025To put it another way, where the complaint states a cause of action for fraud, the parol evidence rule is not a bar to showing the fraud — either in the inducement or in the execution — despite an omnibus statement that the written instrument embodies the whole agreement, or that no representations have been made" (internal citations omitted).]; Sabo at 161 ["The provision to which we above referred — that no verbal undertakings or conditions not contained in the writing were to be binding on either party — sometimes termed a merger clause, merely furnishes another reason for applying the paro

2025To put it another way, where the complaint states a cause of action for fraud, the parol evidence rule is not a bar to showing the fraud — either in the inducement or in the execution — despite an omnibus statement that the written instrument embodies the whole agreement, or that no representations have been made" (internal citations omitted).]; Sabo at 161 ["The provision to which we above referred — that no verbal undertakings or conditions not contained in the writing were to be binding on either party — sometimes termed a merger clause, merely furnishes another reason for applying the paro

2014Additionally, plaintiff’s representation in the merger clause forecloses her reliance upon any representation not contained in the letter agreement and cannot serve as a basis for her fraud claim (see Citibank v Plapinger, 66 NY2d 90, 94-95 [1985]).

2014Additionally, plaintiff’s representation in the merger clause forecloses her reliance upon any representation not contained in the letter agreement and cannot serve as a basis for her fraud claim (see Citibank v Plapinger, 66 NY2d 90, 94-95 [1985]).

2026"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" (TIAA Global Jnvs., LLC, 127 AD3d at 85 [citations omitted]).

2025In addition to being barred by the merger doctrine, the second cause of action is barred by various provisions of the contract, including the provision that plaintiffs took the property "as is" ( see Rivietz v Wolohojian, 38 AD3d 301, 301 [1st Dept 2007]; see also TIAA, 127 AD3d at 85 ).

2008Additionally, the plaintiff’s breach of contract cause of action is barred by the merger clause contained in a rider to the contract (see Davis v Weg, 104 AD2d 617, 619 [1984]).

2002It is well settled that the merger doctrine “does not apply where 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” (Goldsmith v Knapp, 223 AD2d 671, 673 ; see, Davis v Weg, 104 AD2d 617 ).

2024Moreover, plaintiffs' claims alleging a breach of contract were extinguished by the deliverance of the deed pursuant to the doctrine of merger ( see Pickard v Campbell , 207 AD3d at 1108 ; Perez-Faringer v Heilman , 95 AD3d 853, 854 [2d Dept 2012]; Arnold v Wilkins , 61 AD3d 1236, 1236 [3d Dept 2009]).

2024Moreover, plaintiffs' claims alleging a breach of contract were extinguished by the deliverance of the deed pursuant to the doctrine of merger ( see Pickard v Campbell , 207 AD3d at 1108 ; Perez-Faringer v Heilman , 95 AD3d 853, 854 [2d Dept 2012]; Arnold v Wilkins , 61 AD3d 1236, 1236 [3d Dept 2009]).

2017Under these circumstances, because the conduct underlying the charge of attempted kidnapping in the second degree was simultaneous to, and inseparable from, the conduct underlying the charges of sexual abuse in the first degree and assault in the second degree (see People v Gonzalez, 80 NY2d at 153 ; People v Perez, 93 AD3d 1032, 1033 [2012], lv denied 19 NY3d 1000 [2012]), we must apply the doctrine of merger, reverse defendant’s conviction of attempted kidnapping in the second degree and dismiss that count of the indictment (see People v Cassidy, 40 NY2d at 767-768 ; People v James, 114 AD3d

2012As these actions are “exactly the conduct which the Legislature intended to proscribe in enacting the kidnapping statute,” the merger doctrine does not apply (People v Van Steenburg, 221 AD2d 799, 802 [1995], lv denied 87 NY2d 978 [1996]; see People v Kruppenbacher, 81 AD3d at 1170-1171 ; People v Passino, 25 AD3d at 818 ; People v May, 263 AD2d 215, 220 [2000], lv denied 94 NY2d 950 [2000]; compare People v Swansbrough, 22 AD3d 877, 878 [2005]).

2026Contracts and their terms, including merger clauses such as that in the APA, are the kind of documentary evidence properly considered on a motion to dismiss pursuant to CPLR § 3211(a)(1), and such a merger clause can warrant granting a motion dismissing claims for breach of contract, breach of fiduciary duty and/or fraud where the plaintiff’s allegations are clearly precluded by the merger clause and/or barred by the parol evidence rule (see Denenberg v Schaeffer, 137 AD3d 1197, 1198 [2d Dept 2016]; SNS Bank, N.V. v Citibank, N.A., 7 AD.3d 352, 354 [1st Dept 2004]).

2025Since the subject provision of the agreement was unambiguous, Afanador's attempt to introduce extrinsic evidence to alter the terms of the agreement is prohibited by the parol evidence rule, as well as by the agreement's merger clause ( see Schron v Troutman Sanders LLP , 20 NY3d 430, 437; Denenberg v Schaeffer , 137 AD3d 1197, 1198).

2026Contrary to the plaintiffs' contention, evidence of prior or contemporaneous oral representations that Xu would continue to have an ownership interest in the business is not admissible to contradict or vary the parties' integrated writing (<i>see</i> <i>Marine Midland Bank-S. v Thurlow</i>, 53 NY2d at 387 ; <i>Albert v Afanador</i>, 237 AD3d at 1014), and such evidence would effectively negate the asset purchase agreement's merger clause (<i>see</i> <i>Schron v Troutman Sanders LLP</i>, 20 NY3d at 437 ; <i>Klein v Signature Bank, Inc.</i>, 204 AD3d 892 , 896).</p> <p>The Supreme Court also pro

2026Contrary to the plaintiffs' contention, evidence of prior or contemporaneous oral representations that Xu would continue to have an ownership interest in the business is not admissible to contradict or vary the parties' integrated writing ( see Marine Midland Bank-S. v Thurlow , 53 NY2d at 387; Albert v Afanador , 237 AD3d at 1014), and such evidence would effectively negate the asset purchase agreement's merger clause ( see Schron v Troutman Sanders LLP , 20 NY3d at 437; Klein v Signature Bank, Inc. , 204 AD3d 892, 896).

2015Defendant was not charged with any other crime with which the kidnapping charge could have merged, and therefore his contention that his kidnapping conviction should be dismissed pursuant to the merger doctrine is without merit (see People v Rios, 60 NY2d 764, 766 [1983]).

2015Defendant was not charged with any other crime with which the kidnapping charge could have merged, and therefore his contention that his kidnapping conviction should be dismissed pursuant to the merger doctrine is without merit (see People v Rios, 60 NY2d 764, 766 [1983]).

2016Moreover, the merger doctrine was not intended to apply to “kidnapping abductions designed to . . . accomplish murder” (People v Miles, 23 NY2d 527, 539 [1969], cert denied 395 US 948 [1969]; see People v Kalyon, 142 AD2d 650, 650-651 [1988], lv denied 72 NY2d 1046 [1988]).

1998Were we to review them, we would find that “[s]ince the kidnapping could be viewed as a kidnapping with intent to accomplish murder, the merger doctrine is simply unavailable” (People v Kalyon, 142 AD2d 650, 651 , lv denied 72 NY2d 1046 ; see also, People v Miles, 23 NY2d 527, 539 , cert denied 395 US 948 ).

2016Moreover, the merger doctrine was not intended to apply to “kidnapping abductions designed to . . . accomplish murder” (People v Miles, 23 NY2d 527, 539 [1969], cert denied 395 US 948 [1969]; see People v Kalyon, 142 AD2d 650, 650-651 [1988], lv denied 72 NY2d 1046 [1988]).

1998Were we to review them, we would find that “[s]ince the kidnapping could be viewed as a kidnapping with intent to accomplish murder, the merger doctrine is simply unavailable” (People v Kalyon, 142 AD2d 650, 651 , lv denied 72 NY2d 1046 ; see also, People v Miles, 23 NY2d 527, 539 , cert denied 395 US 948 ).

1994In People v Pellot (supra, at 230-231 ) Justice Lazer, writing for a unanimous Appellate Division, in a careful, incisive analysis, held the merger doctrine inapplicable to " 'traditional’ ” or " 'conventional’ ” kidnappings, as prescribed by Penal Law § 135.25 (1) (citing People v Cassidy, 40 NY2d 763, 766 , supra; People v Miles, 23 NY2d 527, 539 ; People v Lombardi, 20 NY2d 266, 271 ; People v Levy, 15 NY2d 159, 164-165 ), nor to those defined in section 135.25 (2), dealing with abductions for certain purposes, which last more than 12 hours, nor to those under subdivision (3), involving the

1990"The merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not be fairly attributed to them.” (People v Cassidy, 40 NY2d 763, 767 ; see, People v Lombardi, 20 NY2d 266 ; People v Levy, 15 NY2d 159 , cert denied 381 US 938 .) Here, the asportation and restraint of Kerrutt from the restaurant to his home and back was incidental to and inseparable from the defendant’s over-all scheme of taking