Vecchiotti v. Silver

Order, Supreme Court, New York County, entered October 23, 1974 granting plaintiffs’ motion for summary judgment in lieu of complaint, and the judgment entered thereon on October 24, 1974, unanimously affirmed, with $60 costs and disbursements to respondents. Plaintiffs brought this motion for summary judgment pursuant to CPLR 3213 upon the ground that the action was based upon instruments for the payment of money only, to wit, a mortgage note and an unconditional guarantee. The major defense asserted at Special Term was based upon defendants’ contention that plaintiffs misrepresented the capacity of the sewer treatment plant involved in the underlying transaction and that the false representations induced defendants to take title to the property. That contention is without support in the record. Indeed, as noted by Special Term, the contract of sale disclaimed the existence of any representations concerning the premises except as specifically set forth in the contract. Further, on the day prior to execution of the mortgage note, the defendant Newton B. Schwartz consented to an agreement in which it was acknowledged that the capacity of the plant may be insufficient. And finally, it appears that defendants made independant inquiry as to the capacity and received two engineers’ reports calling defendants’ attention to the problems involved. We have examined the other contentions raised by the defendants and find them to be patently without merit. Indeed, several of the defenses which defendants now urge, were not raised below and accordingly, may not be considered on appeal. Concur— Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.