Juliano v. McEntee
| Decision Date | 15 May 1989 |
| Parties | Thomas JULIANO, et al., Appellants, v. Dennis McENTEE, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John L. Juliano, P.C., East Northport (Philip J. DeBellis, of counsel), for appellants.
Kelleher & Kelleher, East Northport (James J. Kelleher, of counsel), for respondent Dennis McEntee.
Before MANGANO, J.P., and THOMPSON, BRACKEN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Underwood, J.), entered November 16, 1987, which granted the motion of the defendant Dennis McEntee to dismiss the complaint as asserted against him pursuant to CPLR 3211(a)(1) and (2) an order of the same court dated January 25, 1988, which amended the order entered November 16, 1987, to reflect that the complaint was dismissed as asserted against A.V.P. Termite and Pest Control of N.Y.C. Inc. and Peter Giuseppi.
ORDERED that the plaintiffs are awarded one bill of costs, payable by defendants A.V.P. Termite and Pest Control of N.Y.C. Inc., and Peter Giuseppi.
On February 8, 1986, the defendant Dennis McEntee contracted to sell the plaintiffs a parcel of real property improved with a house. The parties agreed that the plaintiffs would have 10 days in which to have the house inspected for termite infestation and to report any infestation to the seller. The seller would then have the option of removing the infestation at his expense or canceling the sale. Subsequently, the plaintiffs received a termite inspection report dated May 9, 1986, from the defendant A.V.P. Termite which was signed by the defendant Peter Giuseppi. The report stated that a visual inspection of accessible areas and a "sounding of accessible structural members" revealed no evidence of termite infestation. On July 29, 1986, the plaintiffs took title, and sometime thereafter they discovered that the house was infested with termites. The plaintiff brought this action alleging that McEntee had committed fraud and that A.V.P. and Giuseppi had been negligent and had engaged in fraud in issuing a false report. By order entered November 16, 1987, the Supreme Court granted McEntee's motion to dismiss, and, on January 25, 1988, the court amended the order to dismiss the action as against A.V.P. and Giuseppi.
In order to prevail on a motion to dismiss based on documentary evidence, the...
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Copland v. Nathaniel
...has limited knowledge of the problem, the right to rescind is waived. Restatement 2d, Contracts, § 154; see Juliano v. McEntee, 150 A.D.2d 524, 541 N.Y.S.2d 232 (2d Dep't 1989). Here, plaintiffs were aware of a prior termite problem and treatment, conducted their own termite inspection, acc......
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Patten Corp. v. Association of Property Owners of Sleepy Hollow Lake, Inc.
...(a)(1). That motion was supported by the submission of documentary evidence which substantiated the defense (see, Juliano v. McEntee, 150 A.D.2d 524, 525, 541 N.Y.S.2d 232). In addition, both parties submitted extrinsic evidence in the form of affidavits to assist the court in its interpret......
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Schubert v. Marwell
...and it does not dispose of the matter completely, it does not mandate dismissal of the fraud cause of action (see, Juliano v. McEntee, 150 A.D.2d 524, 541 N.Y.S.2d 232). In light of the claims of the existence of a fiduciary duty and a breach of that duty, the demand for punitive damages wa......
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...to CPLR 3211(a)(1). See Seigel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 3211(a)(1); see generally Juliano v. McEntee, 150 A.D.2d 524, 525 (2nd Dep't 1989); Demas v. 325 West End Ave. Corp., 127 A.D.2d 476, 477 (1st Dep't 1987). Here, even assuming arguendo that the affidavit......