De Roche v. Dame

• Decision Date: 10 July 1980
• Citation: 430 N.Y.S.2d 390,75 A.D.2d 384
• Parties: Leonard R. DE ROCHE et al., Appellants, v. J. David DAME et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 390

430 N.Y.S.2d 390

75 A.D.2d 384

Leonard R. DE ROCHE et al., Appellants, v. J. David DAME et al., Respondents.

Supreme Court, Appellate Division, Third Department.

July 10, 1980.

Clute, Clute & Thompson, Plattsburgh (Penelope D. Clute, Plattsburgh, of counsel), for appellants.

Holcombe & Dame, Plattsburgh, for respondents.

Before SWEENEY, J. P., and KANE, STALEY, MAIN and CASEY, JJ.

CASEY, Justice.

On October 19, 1977, the plaintiffs and one of the defendants, J. D. Dame Contracting, Inc., executed a contract for the construction, sale and conveyance of certain real property, with a dwelling house situated thereon, located in Beekmantown, Clinton County, New York. The closing was held and title was transferred on November 4, 1977. By April, 1978 numerous defects appeared in the house, including extensive cracking of portions of the walls and concrete slabs, water seepage, and separation of the exterior siding from the building structure. Plaintiffs notified the defendants of the defects, but the defendants refused to correct them.

Thereafter, the plaintiffs instituted this action in which they contend that the defendants breached the express warranty of the real estate broker who was, according to plaintiffs, the agent of the defendants; that the defendants breached an express covenant in the deed; and that the defendants breached the implied warranties of fitness for habitation and quality workmanlike construction. Sometime after issue had been joined, the plaintiffs moved for an order striking the defendants' answer to the amended complaint for failure to answer interrogatories and comply with a notice to produce. The defendants, in turn, moved for an order granting them summary judgment dismissing the amended complaint. Special Term granted the defendants' motion. The order and judgment of Special Term must be reversed in part.

Generally, a real estate broker employed only to negotiate a sale of premises, that is to procure a purchaser, has no authority to make representations as to the condition of the property or otherwise to bind his employer by representations (Friedman v. New York Telephone Co., 256 N.Y. 392, 176 N.E. 543; Montague v. Bank for Savings of City of N.Y., 181 Misc. 863, 866, 43 N.Y.S.2d 321). Nothing in the record indicates that the facts are not subject to that general rule. Accordingly, we agree with Special Term's dismissal of the cause of action predicated upon the breach of the express warranty allegedly given by the real estate broker.

The deed which conveyed the property contains several covenants. One such covenant provides, in pertinent part:

(T)hat any dwelling house to be situate on said premises shall contain at least 1300 square feet of living space and shall be so constructed and/or altered in a good and workmanlike manner by competent craftsmen or mechanics * * * .

Suffice it to say that such a restriction in a deed to which the grantees-plaintiffs took subject does not provide them with a cause of action against the grantors-defendants for defects in the construction of the dwelling house. This being so, Special Term properly dismissed the cause of action based upon that restrictive covenant.

The cause of action based upon implied warranty of habitability and workmanlike construction, however, should not have been dismissed. For the most part, New York has not recognized a cause of action for breach of an implied warranty for fitness or habitability involving the sale of a completed house by a builder-vendor; instead, New York has applied the doctrine of caveat emptor. (E. g., Eastman v. Britton, 175 App.Div. 476, 162 N.Y.S. 587; Spano v....