Lieber v. TBS Group, Inc.

—Judgment, Supreme Court, New York County (Herman Cahn, J.), entered October 21, 1994, dismissing the complaint, and bringing up for review an order, same court and Justice, entered October 5,1994, which granted defendants’ motion for summary judgment, unanimously af 273 firmed, with costs. The appeal from the order is unanimously dismissed as subsumed in the appeal from the judgment, without costs. Plaintiff fails to raise an issue of fact that she justifiably relied upon the alleged oral promise to invest hundreds of thousands of dollars in the company in the future, given the merger clauses in the subject written agreements (see, Citibank v Plapinger, 66 NY2d 90; Danann Realty Corp. v Harris, 5 NY2d 317, 320-321), and plaintiff’s admission that defendants expressly declined to promise future investment in such agreements (see, Deligiannis v Pepsico, Inc., 757 F Supp 241, 255). Concur — Wallach, J. P., Nardelli, Williams and Mazzarelli, JJ.