Sample v. Yokel

• Decision Date: 20 April 2012
• Citation: 2012 N.Y. Slip Op. 02971,94 A.D.3d 1413,943 N.Y.S.2d 694
• Parties: Martin SAMPLE and Mary Ann Sample, Plaintiffs–Appellants, v. Ellen YOKEL, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02971

94 A.D.3d 1413

943 N.Y.S.2d 694

Martin SAMPLE and Mary Ann Sample, Plaintiffs–Appellants,

v.Ellen YOKEL, Defendant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

April 20, 2012.

Knauf Shaw LLP, Rochester (Alan J. Knauf Of Counsel), for Plaintiffs–Appellants.

Hiscock & Barclay, LLP, Rochester (Gary H. Abelson Of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Plaintiffs, who purchased a home from defendant, commenced this action seeking compensatory and punitive damages for negligence, the alleged failure to perform the requirements of Real Property Law § 465 (2) in conjunction with the sale of residential real estate (hereafter, property), fraud, restitution and implied indemnification. Plaintiffs appeal from an order and judgment granting defendant's motion for summary judgment dismissing the complaint, and we affirm. We note at the outset that plaintiffs conceded before the motion court that they had no viable cause of action for the alleged failure to perform the requirements of Real Property Law § 465 (2) ( see generally Cacheiro v. Middletown Enlarged City School Dist., 29 A.D.3d 846, 846, 814 N.Y.S.2d 535), and they do not address the implied indemnification cause of action on appeal and thus are deemed to have abandoned any issue with respect to it ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).

We further note at the outset that we agree with plaintiffs that Supreme Court erred in discrediting the affidavit of their expert. “[O]pinion evidence must be based on facts in the record or personally known to the witness” ( Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516 [internal quotation marks omitted] ) and, although plaintiffs' expert did not personally inspect some of the property defects at issue, his limited familiarity with the property goes “to the weight of his ... opinion as evidence, not its admissibility” ( Matter of State of New York v. Blair, 87 A.D.3d 1327, 1328, 929 N.Y.S.2d 818 [internal quotation marks omitted] ). Nevertheless, the error is of no moment inasmuch as the expert addressed the construction of the deck, which was not at issue, and he did not address the relevant issue whether defendant concealed information concerning the condition of the deck.

We conclude that the court properly granted that part of the motion with respect to the cause of action for negligence, in which plaintiffs alleged that defendant was negligent in failing, inter alia, to provide an accurate disclosure of property defects in the Property Condition Disclosure Statement. “It is well settled that ‘[a] claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ” ( Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180, 919 N.Y.S.2d 465, 944 N.E.2d 1104, quoting J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148, 831 N.Y.S.2d 364, 863 N.E.2d 585, rearg. denied 8 N.Y.3d 939, 834 N.Y.S.2d 714, 866 N.E.2d 1043). Even assuming, arguendo, that defendant had the requisite relationship with plaintiffs that required her to disclose correct information to plaintiffs concerning the property ( see Meyers v. Rosen, 69 A.D.3d 1095, 1096, 893 N.Y.S.2d 354), we conclude that defendant met her initial burden on that part of the motion by submitting evidence that the information imparted to plaintiffs was correct and that, in opposition thereto, plaintiffs failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Turning now to the fraud cause of action, it is well settled that, “[t]o establish a cause of action for fraud, plaintiff[s] must demonstrate that defendant[ ] knowingly misrepresented a material fact upon which plaintiff[s] justifiably relied and which caused plaintiff[s] to sustain damages” ( Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347). “Although New York traditionally adheres to the doctrine of caveat emptor in an arm's length real property transfer ..., Real Property Law article 14 codifies a seller's disclosure obligations for certain residential real property transfers” ( id.), including this residential real property transaction ( see § 461[5] ). False representation in a property condition disclosure statement mandated by Real Property Law § 462(2) “may constitute active concealment in the context of fraudulent nondisclosure ..., [but] to maintain such a cause of action, ‘the buyer[s] must show, in effect, that the seller thwarted the buyer [s'] efforts to fulfill the buyer[s'] responsibilities fixed by the doctrine of caveat emptor’ ” ( Klafehn, 75 A.D.3d at 810, 906 N.Y.S.2d 347). Here, defendant met her initial burden on that part of the motion with respect to the fraud cause of action by submitting...