Opinion
2011-11-1
Sheilah MARGOLIN, appellant,v.I M KAPCO, INC., doing business as Housemaster, et al., defendants,Dorothy Stelzner, respondent.
Laurence S. Margolin, LLC, Bayside, N.Y., for appellant.Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Patrick D. Geraghty and Debra A. Adler of counsel), for respondent.
Laurence S. Margolin, LLC, Bayside, N.Y., for appellant.Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Patrick D. Geraghty and Debra A. Adler of counsel), for respondent.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Parga, J.), entered May 10, 2010, which, upon an order of the same court dated March 19, 2010, granting that branch of the motion of the defendant Dorothy Stelzner which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against her, is in favor of the defendant Dorothy Stelzner and against the plaintiff, dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, that branch of the motion of the defendant Dorothy Stelzner which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against her is denied, the order dated March 19, 2010, is modified accordingly, and the complaint is reinstated insofar as asserted against the defendant Dorothy Stelzner.
The plaintiff purchased a house in Nassau County from the defendant Dorothy Stelzner (hereinafter the seller). The plaintiff alleges that, after moving into the house, she discovered that the skylights had been leaking and had caused extensive damage to the home, requiring costly repairs. The plaintiff brought this action against, among others, the seller. As to the seller, the complaint asserted a cause of action alleging fraud, averring that the seller fraudulently represented that there were no leaks in the house, and that she actively concealed the defects in the premises. The seller moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint insofar as asserted against her. The Supreme Court granted that branch of the motion which was pursuant to CPLR 3211(a)(1), and judgment was entered accordingly. We reverse.
As the plaintiff correctly contends, the seller waived her right to move pursuant to CPLR 3211(a)(1) to dismiss the complaint based upon documentary evidence, because this defense was not raised in her answer and the motion was not made before the answer was due ( see CPLR 3211[e]; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 241, 837 N.Y.S.2d 247).
The seller argues, as an alternative ground for affirmance ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241), that the branch of her motion
which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her should have been granted. This contention is without merit. “New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment” ( Simone v. Homecheck Real Estate Servs., Inc., 42 A.D.3d 518, 520, 840 N.Y.S.2d 398; see Laxer v. Edelman, 75 A.D.3d 584, 585, 905 N.Y.S.2d 649; Daly v. Kochanowicz, 67 A.D.3d 78, 87, 884 N.Y.S.2d 144; Platzman v. Morris, 283 A.D.2d 561, 562, 724 N.Y.S.2d 502; cf. Real Property Law §§ 462, 465). A plaintiff seeking to recover damages for active concealment must show that the defendant “thwarted” the plaintiff's efforts to fulfill his or her responsibilities imposed by the doctrine of caveat emptor ( Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 12 N.Y.3d 236, 245, 879 N.Y.S.2d 17, 906 N.E.2d 1049 [internal quotation marks omitted]; see Rozen v. 7 Calf Cr., LLC, 52 A.D.3d 590, 593, 860 N.Y.S.2d 155; Matos v. Crimmins, 40 A.D.3d 1053, 1055, 837 N.Y.S.2d 234; Jablonski v. Rapalje, 14 A.D.3d 484, 485, 788 N.Y.S.2d 158).
On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all of the facts alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Jacobs v. Macy's E., 262 A.D.2d 607, 608, 693 N.Y.S.2d 164). Here, the evidentiary facts averred by the plaintiff, including those in her affidavit submitted in opposition to the motion to dismiss ( cf. Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970; Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590), were sufficient to make out a cause of action alleging fraud ( see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976; Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 488, 836 N.Y.S.2d 509, 868 N.E.2d 189). The plaintiff alleged that in addition to denying the existence of any “water problems,” the seller took several steps to hide the existence of the leaks, including placing “large commercial-size aluminum roasting pans” above the drop ceiling tiles to collect water from the ongoing leaks. The facts alleged, if proven, may constitute active concealment ( cf. 17 E. 80th Realty Corp. v. 68th Assoc., 173 A.D.2d 245, 246, 569 N.Y.S.2d 647; London v. Courduff, 141 A.D.2d 803, 804, 529 N.Y.S.2d 874).
To the extent the seller argues, as an alternative ground for affirmance ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d at 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241), that the branch of her motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her should have been granted, that contention is without merit ( see Zane v. Minion, 63 A.D.3d 1151, 882 N.Y.S.2d 255).