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Merger Doctrine and “As Is” Clause Did Not Bar Suit/Fraud-Based Causes of Action Did Not Duplicate Breach of Contract Cause of Action

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a dissent, determined, in the context of a motion to dismiss for failure to state a cause of action, the merger doctrine did not apply to a contract for the sale of an apartment building, the fraud and fraudulent misrepresentations causes of action were not duplicative of the breach of contract cause of action (which was time-barred), and sufficient allegations for piercing the corporate veil had been pled.  The opinion is detailed because of the complicated facts and cannot fairly be summarized here.  With respect to the merger doctrine and the fraud-based causes of action, the court wrote:

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 … . The only exception to this rule is where the parties clearly intended that the particular provision of the contract supporting the claim would survive the delivery of the deed … . Further, an “as is” clause in a contract to sell real property will ordinarily bar a claim for breach of contract … . Plaintiff argues that the merger doctrine does not apply here because of the latent nature of the defects at issue. It further contends that its allegations of deceptive behavior on Seller’s part to mask the true condition of the building render the “as is” clause inoperable.

Although plaintiff cites trial court opinions identifying a latency exception to the merger doctrine, the concept has not been adopted by any of the Appellate Divisions or by the Court of Appeals … , and we are not adopting it here. Nevertheless, the merger doctrine is inapplicable in this case. Although the crux of the action is undoubtedly that plaintiff took title to a seriously defective building, the specific allegations in the complaint are that Seller breached the contract by failing to abide by those provisions designed to permit plaintiff to gain a true understanding of the condition of the property. …[E]ach of those representations was explicitly intended by the parties not to merge into the deed.

Further, since the breach of contract cause of action is addressed to these representations, and not to the condition of the building itself, the presence of the “as is” clause is no bar to the claim. Additionally, while the “as is” clause states that Seller has made no representations as to “any other matter or thing affecting or relating to the property,” it carries the caveat that this is “except as specifically set forth to the contrary in this agreement” (emphasis omitted). Thus, the three specific representations which plaintiff alleges were breached trump the “as is” clause. To the extent that plaintiff asserts fraud claims not directly related to the three surviving representations, the merger doctrine still does not apply (West 90th Owners Corp. v Schlechter, 137 AD2d 456, 459 [1st Dept 1988] [“fraud is a recognized exception to the merger doctrine”). * * *

Where “allegations of intentional fraud, though parallel in many respects to the breach of contract claim, include claims of fraudulent misrepresentations made by defendants which induced them to enter into the contract and close on the property, they are not merely redundant of the breach of contract claim . . . [and a] fraud cause of action is sustainable” … . TIAA Global Invs., LLC v One Astoria Sq. LLC, 2015 NY Slip Op 01768, 1st Dept 3-3-15

 

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