“Dismissal of the complaint is warrantedif the plaintiff fails to assert facts in support ofan elementofthe claim,orifthe factualallegations and inferences to be drawn from them do notallow for an enforceable right ofrecovery.” Connaughton, 29 N.Y.3d at 142.

A claim offraudwill not be dismissed on a CPLR 3211 motion where the defendant “possessed peculiar knowledge of the facts underlying the fraud, and the circumstances present would preclude” a due diligence investigation by the plaintiff.

While justifiable reliance may not be established as a matter of law where a sophisticated purchaser of real estate is shown to have failed to undertake fundamental due diligence by examining public records concerning the property at issue, that is a determination better suited for a motion for summary judgment.

“While a general mergerclause is ineffective to exclude parole evidence offraud in the inducement,a specific disclaimer defeats any allegation that the contract was executed in reliance upon contrary ... representations.” Dillon v. Peak Env't, LLC, 187 A.D.3d 1517, 1518 (4*" Dept.

“To rebut the heavy presumption that a deliberately prepared and executed written instrument manifest[{s] the true intention of the parties a proponent of reformation must show in no uncertain terms, not only that mistake or fraud exists, but exactly what wasreally agreed upon between the parties.” K.L.D.E.

“Dismissal of the complaint is warrantedif the plaintiff fails to assert facts in support ofan elementofthe claim,orifthe factualallegations and inferences to be drawn from them do notallow for an enforceable right ofrecovery.” Connaughton, 29 N.Y.3d at 142.

While justifiable reliance may not be established as a matter of law where a sophisticated purchaser of real estate is shown to have failed to undertake fundamental due diligence by examining public records concerning the property at issue, that is a determination better suited for a motion for summary judgment.

Moreover, “the fact that one party is sophisticated does not end the fact-intensive question of what constitutes reasonable reliance, because [courts] consider the entire context of the transaction.” High Value Trading, LLC v. Shaoul, 168 A.D.3d 641, 642 (1 Dept.

“While a general mergerclause is ineffective to exclude parole evidence offraud in the inducement,a specific disclaimer defeats any allegation that the contract was executed in reliance upon contrary ... representations.” Dillon v. Peak Env't, LLC, 187 A.D.3d 1517, 1518 (4*" Dept.

“To rebut the heavy presumption that a deliberately prepared and executed written instrument manifest[{s] the true intention of the parties a proponent of reformation must show in no uncertain terms, not only that mistake or fraud exists, but exactly what wasreally agreed upon between the parties.” K.L.D.E.

Date: 12/15/2023 Time: 11:08:33 AM $0.00 Employee: State of New York

At a Special Term of the Supreme Court of the State of New York held in and for the County of Monroe on August 29, 2023.

-vs- NOW, UPON reading the motion of Third-Party Defendants CBRE Group, Inc. and Wil- liam Vonderfecht (“Third-Party Defendants”) to dismiss the Third-Party Complaint of De- fendant and Third-Party Plaintiff Brookstone 8, LLC (“Brookstone”), dated March 28, 2023; and UPON reading the Affirmation of Kenneth L. Moskowitz dated March 28, 2023, with exhibits thereto, submitted in support of Third-Party Defendants’ motion; and

Index #: E2021010722 UPON reading the Affirmation of Evan M. Newman dated July 18, 2023, with exhibits thereto, submitted in opposition to Third-Party Defendants’ motion; and UPON reading the motion of Plaintiff EMRES New York, LLC to dismiss Brookstone’s counterclaims and affirmative defenses, dated April 28, 2023; and UPON reading the Affirmation of Jeremy M. Sher dated April 28, 2023, with exhibits thereto, submitted in support of Plaintiff ’s motion; and UPON reading the Affirmation of Evan M. Newman dated July 18, 2023, with exhibits thereto, submitted in opposition to Plaintiff ’s motion; AND due deliberation having been had upon the parties’ legal arguments on submission; AND the Court having issued a Decision dated November 16, 2023, a copy of which is annexed hereto and incorporated herein by reference; it is hereby ORDERED that Third-Party Defendants’ motion is GRANTED IN PART to the extent that Brookstone’s sixth claim against Third-Party Defendants for tortious interference with contract is hereby dismissed without prejudice, and Third-Party Defendants’ motion is other- wise DENIED; and it is further ORDERED that Plaintiff ’s motion is GRANTED IN PART to the extent that Brook- stone’s sixth affirmative defense for lack of personal jurisdiction due to lack of proper service of process is hereby dismissed, and Plaintiff ’s motion is otherwise DENIED.

Dated: _____________________________ Rochester, New York