Brody v. Foedish

In an action to rescind a contract to purchase real estate and for the return of the down payment, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Owen, J.), dated June 2, 1994, which, inter alia, granted the motion by the defendants Edgar Foedish and Patricia Foedish for summary judgment, dismissed the complaint insofar as it is asserted against them, and denied the plaintiffs’ cross motion for summary judgment, and (2) a judgment of the same court, dated June 13, 1994, which, inter alia, dismissed the complaint and all cross claims insofar as they are asserted against the defendants Edgar Foe-dish and Patricia Foedish. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the respondents are awarded one bill of costs. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]). The specific disclaimers in the contract negate any allega [575] tions that the written agreement was executed in reliance upon contrary oral misrepresentations (see, Danann Realty Corp. v Harris, 5 NY2d 317). The plaintiffs’ contention, which is raised for the first time on appeal, that there were mutual mistakes in entering into the contract is unpreserved for appellate review and without merit, as the contract did not misdescribe the property (cf., Weiland v Bernstein, 12 AD2d 945). We have considered the plaintiffs’ remaining contentions and find them to be without merit. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.