I would affirm the order denying defendant’s motion to dismiss the second, third and sixth causes of action in the amended complaint pursuant to CPLR, (3211, subd. [a], par. 7) as legally insufficient on their face.
As indicated in the opinion of the majority of the court, the second and sixth causes of action seek damages based upon allegations of negligent misrepresentations made by defendant, and the third cause is based upon a breach of warranty. All three causes have been found by the majority as insufficient in law because of the disclaimer provisions of paragraph 9 of the contract between the parties, which is annexed as an exhibit to the amended complaint.
Paragraph 9 of the contract reads: “ 9. naugatile products furnished by Naugatuck in any form shall be warranted only to conform to applicable specifications, as agreed upon by Naugatuck and Dorsey. No warranty is made by us with respect to application, installation or use with other materials and no other warranty express or implied is made in connection with any sales of naugatile products to Dorsey.”
*868There is no question but that parties by their contract may disclaim any warranties other than those specified in the agreement. (Broderick Haulage v. Mack-International Motor Truck Gorp., 1 A D 2d 649, 650.) Where I disagree with the majority is in the reading of paragraph 9 of the contract as an unambiguous disclaimer of the warranties upon which plaintiff Dorsey relies in its third cause of action.
Looking at the distributor agreement as a whole, it is a reasonable and arguable contention that the disclaimer clause was not meant to preclude liability if defendant’s Naugatile products could not be used and applied to masonry, concrete and Portland cement surfaces. Paragraph 2 of the contract defines “Naugatile products” as “such products or coatings for the specific uses and applications mentioned in the preceding sentence hereof ”, and the preceding sentence refers to the resale of the products for “ use and application to concrete, masonry and portland cement ”, The subsequent paragraphs of the agreement must thus be read with these initial provisions, which must be assumed by definition to indicate that the products and coatings were suitable for the specified surfaces.
The provision of the disclaimer clause that no warranty is made with respect to application, installation or use with “ other materials ” is not so unequivocal that it may not be reasonably interpreted to mean only that defendant was not to be held to any liability arising from the use of Naugatile products when applied, installed or used with materials other than concrete, masonry and Portland cement. The meaning of the expression “ other materials ” is thus not so crystal clear that the court may rule as a matter of law that there was a disclaimer of the warranties pleaded in the third cause of action.
Since I would hold that the disclaimer clause does not require a dismissal of the third cause of action, then certainly the second and sixth causes of action are not subject to dismissal upon the basis of that disclaimer clause.
Primarily, defendant did not contend that the disclaimer clause barred the second and sixth causes of action. The sole attack on those causes, at Special Term and this court, was that no cause of action for negligent misrepresentations was stated because the transaction between the parties involved merely a sale of goods and that negligent words under such a situation were not actionable. Plaintiffs contended, however, that the pleading contained sufficient allegations to show a relationship between the parties far beyond that of seller and buyer which imposed on the defendant a legal duty to speak with care.
The majority opinion admits “ there is merit in plaintiffs’ contention that a relationship does exist which implies a closer degree of trust and reliance than the ordinary buyer-seller relationship ”. I agree with that observation. But in view of the equivocal nature of the disclaimer clause, that disclaimer should not be held to destroy a claim of negligent language. The same rule should be applied here as in the cases involving merger clauses. A general merger .clause in a contract is ineffective to bar a claim of fraud in the inducement of a contract. (Sabo v. Delman, 3 N Y 2d 155; Crowell-Coilier Pub. Co. v. Josefowitz, 9 Misc 2d 613, affd. 5 A D 2d 987, affd. 5 N Y 2d 998.) Only where a contract has “in the plainest language” indicated that a party is not relying on representations as to the very matter which forms the basis of its present claim, will such specific disclaimer be recognized as defeating the claim. (Danann Realty Corp. v. Harris, 5 N Y 2d 317; Cohen v. Cohen, 1 A D 2d 586, affd. 3 N Y 2d 813.) Since only the adequacy of the amended complaint as a pleading is at issue, it should not be held *869that an ambiguous disclaimer clause estops plaintiffs from asserting their claims based on negligent misrepresentations.
1 would therefore affirm the order sustaining the amended complaint.
Stevens, Eager and Steuer, JJ., concur in Per Curiam opinion; Yalente, J.,
dissents in opinion, in which Botein, P. J., concurs.
Order, entered on December 10, 1963, reversed on the law and the facts, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs.