Schottland v. Brown Harris Stevens Brooklyn, LLC

• Citation: 968 N.Y.S.2d 90,107 A.D.3d 684,2013 N.Y. Slip Op. 03982
• Parties: Joseph SCHOTTLAND, et al., appellants, v. BROWN HARRIS STEVENS BROOKLYN, LLC, et al., respondents, et al., defendant.
• Decision Date: 05 June 2013
• Court: New York Supreme Court Appellate Division

107 A.D.3d 684
968 N.Y.S.2d 90
2013 N.Y. Slip Op. 03982

Joseph SCHOTTLAND, et al., appellants,
v.
BROWN HARRIS STEVENS BROOKLYN, LLC, et al., respondents, et al., defendant.

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

June 5, 2013.

[968 N.Y.S.2d 91]

Joseph N. DiGrazia, Brooklyn, N.Y. (Michael D. Schottland, pro hac vice, of counsel), for appellants.

Penn Proefriedt Schwarzfeld & Schwartz, New York, N.Y. (Neal Schwarzfeld of counsel), for respondents Brown Harris Stevens Brooklyn, LLC, and Phyllis Norton–Towers.

Tane Waterman & Wurtzel, P.C., New York, N.Y. (Stewart E. Wurtzel and N. Paige Simmons of counsel), for respondents Jenny Netzer and Carol R. Netzer.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

[107 A.D.3d 684]In an action, inter alia, to recover damages for fraud and negligent misrepresentation, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated November 4, 2011, as granted the motion of the defendants Brown Harris Stevens Brooklyn, LLC, and Phyllis Norton–Towers to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a) and the separate motion of the defendants Jenny Netzer and Carol R. Netzer for the same relief as to them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Jenny Netzer and Carol R. Netzer which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action, which alleged breach of the covenant against grantor's acts, insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs to the defendants Brown Harris Stevens Brooklyn, LLC, and Phyllis Norton–Towers.

This action arises out of the sale in 2010 of a residential property, located on Clinton Street in Brooklyn, by the defendants Jenny Netzer and Carol R. Netzer (hereinafter together the Netzer defendants), to the plaintiffs for $3.2 million. The defendants Brown Harris Stevens Brooklyn, LLC, and Phyllis Norton–Towers (hereinafter together the Netzers' agents), served as the Netzer defendants' agents and/or brokers in the sale of the property. The defendant Zerline L. Goodman represented[107 A.D.3d 685]the plaintiffs in the sale. The deed for the property delivered to the plaintiffs contained a covenant against grantor's acts.

In or about 2002, by “Conservation Deed of Easement,” the Netzer defendants had granted a conservation easement to the National Architectural Trust, Inc. (hereinafter the Trust), in perpetuity, pursuant to which, inter alia, no changes could...