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Purchaser’s Claim for Breach of Purchase Agreement Based on Unit’s Deviation From Floor Plans Allowed to Proceed

offering plan to proceed. The offering plan, incorporated into the purchase agreement, stated that the apartment would be configured as shown in attached floor plans.  The floor plans reflected that the apartment would contain two entrances and would not contain a mechanical room.  The purchaser contends that the apartment as conveyed required the addition of a mechanical room and thus did not allow two entrances.  These allegations raised issues of fact regarding whether the purchase agreement had been breached.

The purchaser’s claims were not barred by the doctrine of merger, under which “once the deed is delivered, its terms are all that survive and the purchaser is barred from prosecuting any claims arising out of the contract.”  An exception to this rule exists “where the parties clearly intended that the particular provision of the contract supporting the claim would survive the delivery of the deed.”  Here, the purchase agreement provided that “nothing herein contained shall excuse [defendants] from performing those obligations (if any) of the Offering Plan to be performed subsequent to the closing.”  The court concluded that “[a]t the very least, this language creates an ambiguity regarding whether defendants’ obligation to deliver the apartment in accordance with the representations in the Offering Plan survived closing and the delivery of the deed.”  Polsky v. 145 Hudson Street Assocs., 139 A.D.3d 434, 31 N.Y.S.3d 475 (1st Dep’t May 3, 2016).