Key Points

  • The Appellate Division, First Department, unanimously affirmed dismissal of a buyer's suit seeking a $270,000 reduction in the $550,000 price of a damaged Bronx property.
  • The court held that General Obligations Law § 5-1311 applies only absent an express contractual provision allocating the risk of pre-closing loss, and that paragraph 12 of the parties' contract was such a provision.
  • Documentary evidence, including listings, precontract photographs and the contract, showed the buyer knew of the property's severely damaged and unsafe condition before agreeing to buy it without inspection.
  • The court said an as-is clause standing alone does not bar a § 5-1311 claim, but found the buyer knowingly assumed the risks of buying an unsafe property he was not entitled to inspect.
  • The panel held that the trial court should have considered the buyer's corrected opposition affidavit, but that doing so would not change the result.

A New York appeals court on Thursday threw out a Bronx buyer's attempt to shave $270,000 off the $550,000 price of a tree-damaged house he had agreed to buy "as is" and without an inspection, holding that a state law on property damage before closing could not override the terms of his own contract.

A unanimous panel of the Appellate Division, First Department, affirmed a Bronx County Supreme Court order that dismissed the suit brought by buyer Vedat Rexhepi against the seller, Astoria Park Realty LLC. The unsigned decision and order, issued by Justices Kapnick, Rosado, O'Neill Levy and Parker-Raso, awarded costs to the seller.

The case turned on General Obligations Law § 5-1311, a statute that governs casualty loss occurring before closing. The panel held that the statute applies only when a contract has no express provision allocating that risk, and it found that the parties' contract had one. Because the court said an "as is" clause alone does not bar a claim under the statute, the ruling rested on the specific contract language and the buyer's knowledge of the property's condition.

According to the decision, a fallen tree caused extensive damage to the property in March 2018, and the New York City Department of Buildings issued an unsafe building violation. When Astoria Park listed the property several years later, the listings disclosed "[u]nsafe conditions due to water damage from [a] fallen tree," said the sale would be "as is," prohibited interior access and required cash-only offers backed by proof of funds.

Rexhepi offered $550,000 in February 2024. His letter of intent acknowledged that the offer was "as is," without inspection and for cash, and the memorandum of sale stated: "INSPECTION: None — Home deemed unsafe." The seller's broker also gave the buyer's broker interior photographs showing extensive damage and unsafe conditions, the court said.

The contract the parties signed that month carried a form disclaimer that § 5-1311 would govern casualty loss before closing unless the contract provided otherwise. Paragraph 12 acknowledged that Rexhepi knew the property's physical condition and required him to accept it "as is," subject to "reasonable use, wear, tear and natural deterioration" between contract and closing, without a price reduction or any claim for a change in condition.

Rexhepi put down $55,000. By October 2024, the seller was trying to schedule a closing, but Rexhepi's lawyer said he needed more time to secure funds. The seller set a time-of-the-essence closing for Dec. 3, 2024, and the parties twice agreed to push it back, finally to Jan. 28, 2025.

Five days before that date, Rexhepi, by then represented by new counsel, demanded the $270,000 reduction under § 5-1311. He said he had seen new damage through a window the week before and that it went beyond the wear and deterioration paragraph 12 contemplated. The court noted that his repair estimate was "unsupported by an engineering report, contractor's estimate, or other documentation."

Astoria Park said the conditions Rexhepi described were the same unsafe and deteriorated conditions disclosed before the contract was signed, and it refused to lower the price. Rexhepi did not appear at the closing or tender the balance. He then sued for breach of contract, seeking specific performance, which would compel the sale at the reduced price, or, alternatively, $1 million in damages, and he filed a notice of pendency against the property.

The seller moved to dismiss under CPLR 3211(a)(1) and (7). The trial court granted the motion in an order by Wilma Guzman, J., entered Sept. 24, 2025.

On appeal, the panel agreed with Rexhepi on one procedural point, holding that the trial court should have considered his corrected opposing affidavit, whose substance matched an earlier unsigned version. It upheld the refusal to consider a late affirmation from his lawyer.

That correction did not change the outcome. Because Rexhepi waived inspection, the panel said, his claims about the house's interior before the contract were "speculative and unsupported by firsthand knowledge." The listings, photographs, correspondence and contract disclosures "utterly refute plaintiff's claim that he contracted to purchase a property that was materially different from the one that defendant offered to convey," the court held.

The panel then addressed the statute. Paragraph 12, it said, "expressly addressed the property's condition between the contract and closing," and so displaced the statute's default rule. "We are mindful that an 'as-is' clause in a real estate contract does not, standing alone, bar claims under General Obligations Law § 5-1311," the court wrote. But it found that Rexhepi "knowingly assumed the risks inherent in purchasing a severely damaged, unsafe property that he was not entitled to inspect."

Even accepting that the house suffered more damage after the contract was signed, the panel said, Rexhepi's allegations did not show "a material casualty loss that would not have been attributable to 'natural deterioration' arising from the hazardous and unsafe conditions disclosed prior to the sale." The court concluded that he "cannot invoke General Obligations Law § 5-1311 as a pretext to obtain a substantial reduction to the agreed-upon purchase price based on the risks he knowingly accepted."

Rexhepi was represented by J. Garth Foley of Foley & Associates, P.C. Astoria Park was represented by Lee J. Lefkowitz of Zarin & Steinmetz, LLP.

The ruling leaves the dismissal of Rexhepi's complaint in place, with costs to Astoria Park. The decision, entered Nov. 5, 2026, is uncorrected and subject to revision before publication in the Official Reports.