Bernardi v. Spyratos
| Citation | 912 N.Y.S.2d 627,79 A.D.3d 684 |
| Parties | Dennis BERNARDI, et al., appellants, v. Maria R. SPYRATOS, et al., respondents. (Action No. 1) Dennis Bernardi, et al., appellants, v. George Harrison, et al., respondents. (Action No. 2). |
| Decision Date | 07 December 2010 |
| Court | New York Supreme Court Appellate Division |
79 A.D.3d 684
Dennis BERNARDI, et al., appellants,
v.
Maria R. SPYRATOS, et al., respondents. (Action No. 1)
Dennis Bernardi, et al., appellants,
v.
George Harrison, et al., respondents. (Action No. 2).
Supreme Court, Appellate Division, Second Department, New York.
Dec. 7, 2010.
Genevieve Lane LoPresti, Mineola, N.Y., and Albanese & Albanese, Garden City, N.Y. (Bruce Migatz of counsel), for appellants (one brief filed).
Morrison Mahoney, LLP, New York, N.Y. (Brian P. Heermance and Kevin A. Hickman of counsel), for respondents Mary Wilcox and Wilcox & Scelsi.
MARK C. DILLON, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and SHERI S. ROMAN, JJ.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to real property (Action No. 1), and a related action, inter alia, to recover damages for legal malpractice and fraudulent misrepresentation (Action No. 2), the plaintiffs appeal from an order of the Supreme Court, Nassau County (Winslow, J.), dated August 14, 2009, which denied their motion, inter alia, for summary judgment on the complaints in both actions, to dismiss the defendants' affirmative defenses in both actions, for leave to amend the complaint in Action No. 2, and for preliminary injunctive relief, and denied their separate motion, inter alia, for summary judgment directing the defendants in Action No. 1 to remove any encroachments on the subject property.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiffs' motion which was for summary judgment on the third cause of action in Action No. 2 insofar as asserted against the defendant George Harrison to the extent of recovering a $500 credit, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof denying that branch of the plaintiffs' motion which was for leave to amend the complaint in Action No. 2,
The plaintiffs own residential property in Freeport, which they purchased from the defendant George Harrison in January 2003. The waterfront property contains a one-family house and a bulkhead. The plaintiffs were represented in the transaction by the defendant Mary Wilcox and her law firm, the defendant Wilson & Scelsi (hereinafter together the Wilcox defendants). The defendants Maria Spyratos (hereinafter Maria) and Anthony Spyratos (hereinafter together the Spyratos defendants) owned the property to the north from 1971 to 1972, when it was transferred solely to Maria.
After the plaintiffs purchased their property, a boundary dispute with the Spyratos defendants developed. New surveys revealed certain encroachments onto the plaintiffs' property. The plaintiffs also allegedly discovered numerous problems with the condition of the property not revealed in the inspection conducted previous to sale, including a deteriorated bulkhead and water damage to the home.
The plaintiffs commenced Action No. 1 against the Spyratos defendants, seeking a determination that the area in dispute belongs to them, injunctive relief directing removal of the encroachments, and to recover damages, inter alia, for trespass, nuisance, and intentional and negligent infliction of emotional distress. The Spyratos defendants asserted affirmative defenses and a counterclaim in that action, alleging that they acquired title to the disputed areas by adverse possession. The plaintiffs' motion for preliminary injunctive relief was denied by order dated March 16, 2006, and they failed to perfect their appeal from that order.
Meanwhile, the plaintiffs commenced Action No. 2 against the Wilcox defendants, Harrison, and the title company. The action was subsequently discontinued as to the title company. The first two causes of action in Action No. 2 allege that Harrison deliberately and actively concealed, and made fraudulent misrepresentations as to, certain defects in the condition of the premises and the existence of adverse claims. The third cause of action seeks to recover damages pursuant to Real Property Law § 462 for Harrison's failure to provide a property condition disclosure statement. The plaintiffs further allege that the Wilcox defendants committed legal malpractice by, among other things, failing to advise them to obtain an updated survey prior to purchase. In their answer, the Wilcox defendants asserted eight affirmative defenses.
The two actions were joined for trial, but not consolidated. Thereafter, all parties moved for summary judgment. The plaintiffs further moved to dismiss all affirmative defenses of each defendant and for leave to amend the complaint in Action No. 2, and sought preliminary injunctive relief against the Spyratos defendants. The Supreme...
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...upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury" ( Bernardi v. Spyratos, 79 A.D.3d 684, 687, 912 N.Y.S.2d 627 ; see Oxford Health Plans [N.Y.], Inc. v. Biomed Pharms., Inc., 181 A.D.3d 808, 812, 122 N.Y.S.3d 47 ; Lewis v. Well......
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...it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury" ( Bernardi v. Spyratos , 79 A.D.3d 684, 687, 912 N.Y.S.2d 627 ; see Lewis v. Wells Fargo Bank, N.A. , 134 A.D.3d 777, 778, 22 N.Y.S.3d 461 ). We agree with the Supreme Court's determ......