Bando v. Achenbaum

• Decision Date: 02 December 1996
• Citation: 234 A.D.2d 242,651 N.Y.S.2d 74
• Parties: Joseph T. BANDO, et al., Respondents-Appellants, v. Alvin A. ACHENBAUM, et al., Appellants-Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 74

651 N.Y.S.2d 74

234 A.D.2d 242

Joseph T. BANDO, et al., Respondents-Appellants, v.Alvin A. ACHENBAUM, et al., Appellants-Respondents, et al Defendants.

Supreme Court, Appellate Division Second Department.

Dec. 2, 1996.

Spector & Feldman, New York City, (Jeffrey C. Dannenberg, of counsel), for appellant-respondentAlvin A. Achenbaum.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, for appellants-respondents Prudential Treefrog Realty and Barbara Eisert.

Jacob D. Fuchsberg Law Firm, New York City, (Diane Welch Bando, pro se of counsel), for respondents-appellants.

Before BRACKEN, J.P., and PIZZUTO, SANTUCCI and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, (1)the defendants Prudential Treefrog Realty and Barbara Eisert appeal from so much of an order of the Supreme Court, Westchester County(Silverman, J.), entered September 27, 1995, as denied those branches of their motion which were (a) for summary judgment dismissing the complaint insofar as asserted against them, or, pursuant to CPLR 3211(a)(7), to dismiss the fifth, sixth, and seventh causes of action and (b) pursuant to Code of Professional Responsibility DR 5-101 (N.Y.CRR 1200.20) and DR 5-102 (N.Y.CRR 1200.21) to disqualify the plaintiffs' counsel, Jacob D. Fuchsberg Law Firm, from representing the plaintiffs in this action, (2)the defendantAlvin A. Achenbaum separately appeals from so much of the same order as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and (3)the plaintiffs cross-appeal from so much of the same order as granted that branch of the motion of the defendants Prudential Treefrog Realty and Barbara Eisert which was to dismiss the tenth cause of action to recover damages for intentional infliction of mental distress.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied the motions of the defendantAlvin A. Achenbaum and the defendants Prudential Treefrog Realty and Barbara Eisert for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor provisions granting the appellants' respective motions; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiffs to the appellants-respondents appearing separately and filing separate briefs, and the action against the remaining defendants is severed.

In March 1994, the plaintiffs purchased a house from the defendantAlvin A. Achenbaum through the defendant Prudential Treefrog Realty, a real estate brokerage corporation.The defendantBarbara Eisert is a real estate broker employed by Prudential Treefrog Realty (hereinafter collectively referred to as Treefrog/Eisert) and was the broker in the transaction.The plaintiffs commenced this action a few months after the closing, alleging several causes of action against Treefrog/Eisert and Achenbaum, based essentially on alleged misrepresentations made by these defendants regarding the extent of termite damage.

We find that the separate motions of Treefrog/Eisert and Achenbaum for summary judgment dismissing the complaint insofar as asserted against them were improperly denied.The crux of the plaintiffs' claims against Achenbaum and Treefrog/Eisert is their alleged failure to volunteer the fact that termite infestation at the house might have been greater than the plaintiffs expected.However, mere silence is insufficient to support a cause of action sounding in fraudulent misrepresentation, particularly where the plaintiffs were on notice of a condition prior to closing and failed to discover the severity of the problem (see, Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, affd.25 N.Y.2d 941, 305 N.Y.S.2d 153, 252 N.E.2d 632;Copland v. Nathaniel, 164 Misc.2d 507, 624 N.Y.S.2d 514).The general rule is that "if the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations"(Danann Realty Corp. v. Harris, 5...