Grammer v. Turits

• Decision Date: 24 April 2000
• Citation: Grammer v. Turits, 706 N.Y.S.2d 453, 271 A.D.2d 644 (N.Y. App. Div. 2000)
• Parties: KELSEY GRAMMER, Respondent,<BR>v.<BR>PHILIP TURITS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 644

706 N.Y.S.2d 453

KELSEY GRAMMER, Respondent,

v.PHILIP TURITS et al., Appellants.

Decided April 24, 2000.

Santucci, J. P., Altman, Friedmann and McGinity, JJ., concur.

Ordered that the order dated March 17, 1999, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated March 19, 1999, is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Philip Turits and Greenwich Group, Inc., which were for summary judgment dismissing the first and second causes of action insofar as asserted against them and so much of the third cause of action as sought to recover the rent collected by them, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, with the assistance of the defendants Dunemere Associates and Bettie Wysor (hereinafter the brokers), entered into a one-month sublease to rent a beach-front house in Sagaponack from the defendant Greenwich Group, Inc., which had leased the property from the owner, the defendant Philip Turits (hereinafter the landlords). When he initially contacted the brokers, the plaintiff, who resides in California, stressed the need for a home which was private and quiet. However, when he arrived at the house, he allegedly discovered ongoing construction on the adjoining property. Due to this condition, the plaintiff and his family abandoned the rental prior to the expiration of the term.

The plaintiff subsequently commenced this action against the brokers and the landlords. He alleges that the brokers misrepresented that the property would satisfy his requirements of privacy and quiet and failed to disclose the fact that there was construction taking place on the adjoining property. The brokers moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

To recover on a theory of negligent misrepresentation, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information because of some special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information provided (see, Pappas v Harrow Stores, 140 AD2d 501, 504). "[T]here may be liability * * * where there is a relationship between the parties such that there is an awareness that the information provided is to be relied upon for a particular purpose by a known party in furtherance of that purpose, and some conduct by the declarant linking it to the relying party and evincing the declarant's understanding of their reliance" (Houlihan/Lawrence, Inc. v Duval, 228 AD2d 560, 561).

Assuming the truth of the allegations in the complaint and in the affidavits submitted in opposition to the brokers' motion (see, Guggenheimer v Ginzburg, 43 NY2d 268)...