The opinion of the court was delivered by: Siragusa, J.
This case, brought by Ridge Seneca Plaza, LLC ("Ridge Seneca") is before the Court on a motion for summary judgment (Docket No. 104) filed by First Allied Shopping Center, L.P. ("First Allied").*fn1 For the reasons stated below, the Court grants the application.
Pursuant to Western District of New York Local Rule, both parties submitted statements of fact. W.D.N.Y. Loc. R. Civ. P. 56 (2011). The source of the following background is from the parties' statements and not in dispute, except where indicated below. Ridge Seneca Plaza (referred to as the "Premises" in the Purchase Agreement), the property that is the subject matter of this lawsuit, is located at the intersection of the northwest corner of Seneca Avenue and the south side of Ridge Road East in Rochester, New York, and is owned by Plaintiff Ridge Seneca Plaza, LLC ("Ridge Seneca"). Ridge Seneca Plaza, LLC ("Ridge Seneca") purchased this property from First Allied in February of 2001 under the terms of a contract dated September 14, 2000, as amended on January 11, 200I. The purchase contract was originally entered into by First Allied with Sylvan Enterprise Corp. ("Sylvan") and Sylvan assigned the contract to Ridge Seneca on the day of closing, February 27, 2001. Sylvan and Ridge Seneca were both represented by Harter Secrest & Emery LLP, and First Allied was represented by Woods Oviatt Gilman LLP. Sylvan and Ridge Seneca were both managed and controlled by Rabbi Shlomo Noble ("Noble"), who executed the assignment of the Contract on the part of both Sylvan and Ridge Seneca. The Purchase Agreement provided in Paragraph 6, as follows:
6. Condition of Premises.
6.1 Buyer specifically acknowledges and agrees that Seller shall sell and Buyer shall purchase the Premises "as is, where is and with all faults" and Buyer is not relying on any representations or warranties of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, from Seller, nor any partner, officer, employee, attorney, agent or broker of Seller, as to any matter, concerning the Premises, or set forth, contained or addressed in any materials provided by Seller to Buyer with respect to the Premises (including without limitation, the completeness thereof). Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller, nor any partner, officer, employee, attorney, agent or broker of Seller, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right or remedy in favor of Buyer. Buyer further acknowledges and agrees that Seller is under no duty to make any inquiry regarding any matter that may or may not be known to Seller or any partner, officer, employee, attorney, agent or broker of Seller. This Section shall survive the Closing, or, if the Closing does not occur, beyond the termination of this Agreement.
6.3 Buyer, for itself and any successors and assigns of Buyer, waives its right to recover from, and forever releases and discharges, and covenants not to sue, Seller, Seller's property and asset managers, any lender to Seller, the partners, trustees, shareholders, controlling persons, directors, officers, attorneys, employees and agents of each of them, and their respective heirs, successors, personal representatives and assigns (each a "Seller Party", and collectively, the "Seller Parties") with respect to any and all claims, whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the Premises including, without limitation, the physical, environmental and structural condition of the Premises or any law or regulation applicable thereto (including, without limitation, any claim or matter relating to the use, presence, discharge or release of hazardous materials on, under, in. above or about the Premises); provided, however, Buyer does not waive its right under Section 12 hereof in connection with any default by Seller hereunder. This Section 6.3 shall survive the Closing. (Exhibit F)
(Purchase Agreement ¶¶ 6--6.3.) The Purchase Agreement further provided pertinent part as follows:
For the period from the Effective Date to twelve o'clock noon on October 30, 2000 (the "Review Period"). Buyer shall have the right to inspect all aspects of the Premises including the leases and contracts in effect and all existing governmental approvals, and, in connection therewith, shall have the right at all reasonable times to enter onto the Premises in order to inspect the Premises and to conduct such tests as Buyer deems appropriate (subject to the terms of Section 3.2 below). If Buyer is dissatisfied with its investigations, Buyer shall have the right to terminate this Agreement at any time on or before twelve o'clock noon on the last day of' the Review Period, by providing written notice of termination to Seller on or before the expiration of the Review Period. (Contract ¶ 3.1.)
During the negotiation of the Purchase Agreement, and prior to the closing, there were never any discussions between representatives of Sylvan or Ridge Seneca and representatives of First Allied concerning the environmental condition of the property. Amendment No. 1 to the contract provided in pertinent part as follows:
1. Buyer and Seller agree that the Contract is hereby reinstated and in full force and effect as amended by the terms of this Amendment.
2. Section 3.1 shall be deleted in its entirety, it being understood that Buyer has reviewed its contingency described therein and accepts the Property in its "as is" "where is" condition. Buyer acknowledges that Buyer has completed its investigations pursuant to section 3.2..
6. Except as amended hereby, all terms and conditions of the Contract shall remain unmodified and in full force and effect. (First Amendment to Agreement to Purchase ¶¶1--2, 6.) The Amendment is consistent with Paragraph 6.1 of the Purchase Agreement, which provided that the property would be purchased "as is, where is and with all faults" and that there were no representations whatsoever of any condition of the property on the part of First Allied, as well as the release provisions of Paragraph 6.3.
Pursuant to Paragraph 6.2 of the Purchase Agreement, Sylvan engaged Fisher Associates, P.E., L.S., P.C. to conduct a Phase I environmental study of the property. No Phase II environmental study was conducted prior to the closing.
In 2005, Ridge Seneca sought a new mortgage from Washington Mutual Bank and at that time petroleum was discovered under the property. There is no source of petroleum on the property itself and, although Plaintiff's original complaint included claims under the Oil Spill Law of the State of New York against First Allied, Ridge Seneca withdrew all claims made under that law against First Allied when it filed its amended complaint. In its amended complaint, Ridge Seneca included a claim against First Allied under the Comprehensive Environmental Response, Compensation, and Liability Act, Section 107, but Plaintiff has since withdrawn that claim as well.
Ridge Seneca has four remaining causes of action against First Allied, which are the following:
AS AND FOR A SECOND CAUSE OF ACTION FOR MISTAKE AGAINST FIRST ALLIED, PLAINTIFF ALLEGES AS FOLLOWS:
97. Plaintiff repeats and realleges paragraphs "1" through "96" of this Amended Complaint, as if set forth in this paragraph at length.
98. Plaintiff, Sylvan and First Allied mistakenly believed that the Property was free of Contamination and did not require remediation, and based upon this mistaken fact, entered into or accepted the Purchase ...