Pellerito v. Russo

— In an action to recover on five promissory notes, commenced by service of a summons and notice of motion for summary judgment in lieu of complaint, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated January 5, 1990, which denied his motion for summary judgment. Ordered that the order is affirmed, with costs. The defendant set forth sufficient allegations in his affidavit in opposition to the plaintiffs motion for summary judgment in lieu of complaint to raise an issue of fact as to whether he was fraudulently induced to execute the promissory notes in question (see, Epstein v Scally, 99 AD2d 713). Such allegations may be asserted despite the presence of a general merger clause in the parties’ related contract for the purchase of the construction business previously owned by the plaintiff (see, Regal Limousine v Allison Limousine Serv., 136 AD2d 534, 535; see also, Sabo v Delman, 3 NY2d 155). Under the circumstances, the Supreme Court properly denied the plaintiffs motion for summary judgment. Lawrence, J. P., Miller, Ritter and Copertino, JJ., concur.