                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 18, 2015                      520232
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BURKINS & FOLEY TRUCKING AND
   STORAGE, INC.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

COUNTY OF ALBANY,
                    Respondent.
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Calendar Date:   April 20, 2015

Before:   Lahtinen, J.P., Rose, Devine and Clark, JJ.

                              __________


      Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for appellant.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Justin
W. Gray of counsel), for respondent.

                              __________


Clark, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered July 25, 2014 in Albany County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.

      In May 2010, plaintiff was the successful bidder at a
public auction for an abandoned commercial building located in
the City of Albany (hereinafter the property). Prior to the
auction, plaintiff had visually inspected the property and
reviewed the property file provided by defendant. Defendant
executed a quitclaim deed conveying the property to plaintiff in
September 2010, which was later recorded in October 2010.
Plaintiff alleges that after it took possession of the property
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in September 2010, it discovered extensive property damage that
occurred between the time of the contract and transfer of the
deed. Defendant disputes these allegations. In April 2011,
plaintiff commenced this action against defendant for, among
other things, breach of contract. Following discovery, defendant
moved for summary judgment dismissing the complaint, which motion
Supreme Court granted. Plaintiff now appeals.

      We affirm. Unless a land sale contract expressly provides
otherwise, a vendor bears the risk of loss until legal title or
possession has been transferred to the purchaser (see Kendle v
Town of Amsterdam, 36 AD3d 985, 987 [2007], lv dismissed 8 NY3d
940 [2007]). However, a contract for the sale of real property
merges with the deed and, as a result, the terms of the contract
do not survive transfer of title unless the parties clearly
specify otherwise (see Stollsteimer v Kohler, 77 AD3d 1259, 1260
[2010]; Arnold v Wilkins, 61 AD3d 1236, 1236 [2009]). Here, the
terms and conditions of the auction provided that the sale would
be governed by the Uniform Vendor and Purchaser Risk Act
(hereinafter UVPRA), which provides a purchaser with the right to
rescind the sale contract or recover money paid toward the
purchase price under certain circumstances (see General
Obligations Law § 5-1311 [1] [a]). However, there was no
indication that plaintiff's rights under the UVPRA would survive
transfer of title. In fact, the terms and conditions provided
that the property would be sold "as is" and that a purchaser
would not have recourse against defendant for any defects
stemming from the sale. Therefore, any rights that plaintiff may
have asserted under the UVPRA were extinguished when title was
transferred to plaintiff.

      In addition, we find no merit to plaintiff's argument that
the damage constituted a latent defect. The latent defect
exception to the merger doctrine has not been adopted by this
Court or the Court of Appeals in these circumstances (see Arnold
v Wilkins, 61 AD3d at 1237), and we decline to extend it here.

     Lahtinen, J.P., Rose and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
