Slavin v. Hamm
| Decision Date | 29 December 1994 |
| Citation | 621 N.Y.S.2d 393,210 A.D.2d 831 |
| Parties | Fran SLAVIN et al., Appellants, v. Gerald D. HAMM et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Fran Slavin, in pro per.
Patricia Van Tassel, in pro per.
F. John Holmes, Cobleskill, for Gerald D. Hamm, respondent.
Donohue, Sabo, Varley & Armstrong, P.C. (Bruce S. Huttner of counsel), Albany, for Shaul Realty, respondent.
Michael L. Breen, in pro per.
Daniel S. Ross, in pro per.
Before CARDONA, P.J., and MIKOLL, MERCURE, CASEY and YESAWICH, JJ.
Appeal from an order of the Supreme Court (Hughes, J.), entered December 7, 1993 in Schoharie County, which, inter alia, granted summary judgment to defendants Shaul Realty, Gerald D. Hamm and Daniel S. Ross and dismissed the complaint against them.
Plaintiffs sued defendants alleging collusion, concealment and fraud and seeking cancellation of their mortgage indebtedness, as well as compensatory and punitive damages stemming from the sale of certain property to plaintiffs by defendant Gerald D. Hamm. Defendant Michael L. Breen served as plaintiffs' attorney in the real estate sale transaction. Defendant Shaul Realty was the real estate agency involved and defendant Daniel S. Ross served as its counsel.
Plaintiffs alleged a conspiracy by defendants to keep knowledge of an easement, running over plaintiffs' property, from plaintiffs. The easement gave plaintiffs' neighbors an easement to use a spring located on plaintiffs' property and the right to repair, maintain and replace the water line leading to the spring, all of which ran over plaintiffs' property. This easement had not been referenced in either the purchase contract or the warranty deed. Plaintiffs complained to Breen about his failure to advise them of the easement after they received the abstract of title, but to no effect. Plaintiffs moved onto the property and made improvements thereon. Several years after the closing, a foreclosure action was brought by Hamm against plaintiffs when they missed six consecutive mortgage payments. Breen was retained as Hamm's attorney in that proceeding. Shortly thereafter plaintiffs commenced the instant action against defendants. Plaintiffs then moved for summary judgment against all defendants. Shaul Realty cross-moved for summary judgment and dismissal of the complaint. Supreme Court denied plaintiffs' motion, granted Shaul Realty's motion and also granted summary judgment on its own initiative in favor of Hamm and Ross. Plaintiffs' motion to vacate the order was denied. This appeal from the order denying plaintiffs' summary judgment motion ensued.
Addressing plaintiffs' arguments ad seriatim, we hold that Supreme Court properly granted summary judgment to Shaul Realty. The basis of plaintiffs' claims against this party is that Hamm worked as a real estate agent out of Shaul Realty's office and that his misrepresentations were attributable to Shaul Realty as Hamm's principal. We disagree. Hamm listed the property in question with Shaul Realty as owner; consequently, Shaul Realty became Hamm's agent for purposes of the sale. Shaul Realty was represented by Helen Hennessy in the sale to plaintiffs. Plaintiffs do not allege, nor is any evidence set out, that Hamm acted in any capacity other than as owner of the property. Accordingly, Shaul Realty did not incur any liability based on the theory that Hamm acted as its agent. Further, plaintiffs have not claimed that Hennessy made any false representations to them nor have they contradicted the affidavit of Perry Shaul, principal of Shaul Realty, that he had no knowledge of any defect in title. Any representations alleged by plaintiffs came from Hamm and they cannot be imputed to Shaul Realty (see, Adler v. Helman, 169 A.D.2d 925, 926, 564 N.Y.S.2d 828). There being no triable issue of fact raised by plaintiffs, judgment in favor of Shaul Realty is warranted as a matter of law (see, Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324; see also, CPLR 3212[b].
Plaintiffs next challenge Supreme Court's grant of summary judgment in favor of Ross based on their claim that he knew about and went along with the allegedly fraudulent conveyance of the property and spring rights and that, by drawing up the warranty deed, he made false representations to plaintiffs. We find the argument without merit. Plaintiffs have not presented any evidence nor do they allege that Ross made any express...
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...not amount to a concealment that is actionable as a fraud. See Matos v. Crimmins, 40 A.D.3d 1053, 1055 (2d Dep't 2007); Slavin v. Hamm, 210 A.D.2d 831, 832 (3d Dep't 1994). Here, plaintiffs allege that defendants had engaged in active concealment of the extant humidity and mold issues in th......
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...public records. Under these circumstances, there is no basis upon which liability may be imposed on the appellants (see, Slavin v. Hamm, 210 A.D.2d 831, 621 N.Y.S.2d 393; LaBarbera v. Marino, 192 A.D.2d 697, 597 N.Y.S.2d 137; London v. Courduff, 141 A.D.2d 803, 529 N.Y.S.2d 874; Perin v. Ma......
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