Opinion
009063/09.
Decided November 9, 2009.
Reena Gulati, Esq., Attorney for Plaintiff, Lake Success, NY.
Lauren J. Wachtler, Mitchell Silberberg Knupp, LLP, Attorneys for Defendants, New York, NY.
This motion by the plaintiff C.V. Company, LLC for an order pursuant to CPLR 3211(a)(1), (7) and 3212 granting summary judgment in its favor on its claims and dismissing the defendants' counterclaims is granted.
This cross-motion by the defendants for an order pursuant to CPLR 3211(d), CPLR 3212(f) denying the plaintiffs' motion or adjourning it so as to allow discovery to be conducted is denied.
In this action, the plaintiff C.V. Company seeks to recover on a mortgage note and a guaranty that the defendants executed in its favor when they purchased its property. Via their counterclaims, the defendants seek to recover, inter alia, for fraud in the inducement. They allege that the plaintiff knowingly sold them property which it knew was contaminated, and that it in fact misled them regarding its condition.
In their Answer, the defendants have advanced eight affirmative defenses: failure to state a claim (First and Second Affirmative Defenses); estoppel (Third Affirmative Defense); Statute of Limitations (Fourth Affirmative Defense); laches and unclean hands (Fifth Affirmative Defense); breach of contract (Sixth Affirmative Defense); breach of the covenant of good faith and fair dealing (Seventh Affirmative Defense); and, that the guaranty is ineffective to bind the signatories (Eighth Affirmative Defense).
The defendants have also advanced five counterclaims. As their First Counterclaim, they allege that the plaintiff breached their contract by failing to convey property free from contamination. As their Second Counterclaim, they allege that the plaintiff negligently conveyed property that it knew or should have known was contaminated. For their Third Counterclaim, they allege that the plaintiff acted fraudulently by knowingly misrepresenting the property's condition. The Fourth Counterclaim alleges that plaintiffs have been unjustly enriched. Finally, the Fifth Counterclaim seeks to hold the plaintiffs strictly liable pursuant to Navigation Law §§ 170, 181.
The plaintiff seeks summary judgment on its claims on the mortgage note and guaranty as well as summary judgment dismissing the defendants' affirmative defenses and counterclaims. The defendants oppose the plaintiff's application pursuant to CPLR 3211(d), 3212(f).
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v King , 10 AD3d 70 , 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra . Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2d Dept. 1990). To establish its entitlement to summary judgment, the plaintiff must also demonstrate that none of the defendants' Affirmative Defenses have merit. H. Co., Ltd. v Michael Kors Stores, LLC, 24 Misc 3d 1127 (A) (Supreme Court, Nassau County 2009), citing CPLR 3212(b).
Defendants executed a mortgage note in the plaintiff's favor with respect to 1589 Manatuck Boulevard in the amount of $375,000 on February 25, 2004, and all of the individual defendants executed personal guaranties as well. The mortgage ran for five years at 6.5% interest until February 25, 2009, on which date a balloon payment of the entire $375,000 was due. The defendants failed to make this payment. The plaintiff seeks to recover the balance owing, along with interest since the defendants' default and a 5% late charge set forth in the mortgage note.
In their Answer, the defendants allege that in 2003, the defendant Basharet Khawaja was approached by his cousin about commercial properties that were for sale at 1589 and 1597 Manatuck Boulevard in Bay Shore. The parcels are adjacent to each other, are separated by a fence, and have three commercial establishments on them. The defendants allege that Basharet Khawaja's cousin referred him to Nina Shah, the property's broker and the plaintiff's agent, and through her and the plaintiff's principal Chatan Shah, Khawaja negotiated the purchase of the properties. On September 3, 2003, the defendants Khawaja brothers entered into two contracts, one for 1589 Manatuck Boulevard and the other for 1597 Manatuck Boulevard. Each property had a purchase price of $625,000 but the sales contracts specifically provided that they could be cancelled if the Khawajas could not obtain commercial financing for the bulk of the purchase price. When the defendants were unable to obtain financing, the plaintiff's principal Chatan Shah offered to hold $375,000 interest only mortgages on both properties with balloon payments of $375,000 due on both mortgages after five years.
The broker provided defendants with an Environmental Phase I Study prepared October 10, 2000 for Greenpoint Savings Bank, (the plaintiff's lender when it purchased 1589 Manatuck Boulevard), and the plaintiff assured them that the Phase I Environmental Study established that the property was "environmentally sound" and that refinancing of the balloon payment would not be a problem. The defendants allege that the Phase I Environmental Report in fact represented that "no additional testing of the property was necessary or even advisable" and that as a result, they were assured that refinancing the balloon payment would not be a problem and furthermore, that in the event that they defaulted, the property's worth would outweigh or at least be adequate to satisfy the balance owing on the mortgage. They allege that based upon Mr. Shah's representations and the Phase I Environmental Study, they agreed to close on the property with the plaintiff as the lender.
The defendants further allege that because they lacked the $250,000 necessary to buy the properties, they approached the defendant Asif Raya who put up the $250,000 down payment for each parcel for a total of $500,000 and that they all formed Ban (Basharet, Asif, Nasir) Realty which took title to the properties.
It is not disputed that while the defendants made all of the monthly payments as well as the balloon payment on 1597 Manatuck Boulevard via financing with a lender, they did not make the balloon payment on 1589 Manatuck Boulevard. They allege that they were unable to obtain financing on that property because the environmental study performed in December, 2008 on behalf of a potential lender revealed that the property is contaminated.
The parties' contract provides as follows:
Purchaser has inspected the Premises; is fully familiar with the physical condition and state of repair thereof . . . shall accept the Premises "as is" and in their present condition, subject to reasonable use, wear, tear and natural deterioration between now and the Closing Date, without any reduction in the Purchase Price for any change in such condition by reason thereof subsequent to the date of this contract.
It also provides that:
Before entering into this contact, Purchaser has made such examination of the Premises, the operation, income and expenses thereof and all other matters affecting or relating to this transaction as Purchaser deemed necessary, in entering into this contract. Purchaser has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by Seller or any agent, employee or other representative of Seller or by any broker or any other person representing or purporting to represent Seller, which are not expressly set forth in this contract, whether or not any such representations, warranties or statements were made in writing or orally.
In the Multiple Dwelling Supplemental Rider, the plaintiff represents that it "knows of no environmentally hazardous condition or substance at the premises."
The Phase I Environmental Study that the plaintiff provided to the defendants prior to closing on 1589 Manatuck Boulevard specifically stated that it was "limited in budget and scope" and that "[n]o sampling, testing or laboratory analysis is conducted unless so noted and the assessment is based on the professional opinion of the Environmental Consultant." It further states that it " is not and should not be considered a warranty or guarantee about the presence or absence of environmental contaminants which might affect the subject property (emphasis added)." With respect to Groundwater Soil, it provides:
The nature of subsurface soil and ground water at the subject property cannot be confirmed, given the limited budget and scope of this Phase I Environmental Survey. The subsurface area of and in the immediate vicinity of the subject property contains a highly developed infrastructure which makes the penetration of contaminated ground water or soil stemming from sites other than those immediately adjacent to the subject properties difficult and, therefore, unlikely. It is therefore the opinion of this Environmental consultant that there is little risk of subsurface soil and/or ground water contamination at this property and that the cost of on-site sampling and analysis to ascertain subsurface soil and groundwater quality are not justified at this time (emphasis added).
The Study notes that there is evidence that the site was used as a gas station from 1968 til the mid 1980's. No fuel oil storage tanks were noted but the records reflected that an underground 6,000 gallon gasoline tank was installed on December 9, 1970, and that "underground storage tanks" were removed in June of 1981. The study also reflects that the site is listed in the New York State spills Database; that a 550 gallon waste oil tank spilled some oil on September 5, 1989; and that "Tyree [was] hired to pump out tank to be removed on Thursday 9/7/89: Some soil stockpiled Tyree to dispose of."
Contrary to the plaintiff's argument, the individual defendants did not waive defenses in their guaranty. It simply provides "[i]t is the intent of the parties that Nasir Khawaja and Basharet M. Khawaja and Asif Raza, the owners of Ban Realty Corp. are signing this note as personal guarantors. This Rider serves to reverify that we are personally guaranteeing this note."
While failure to state a cause of action is a defense permitted in an Answer ( Butler v Catinella , 58 AD3d 145 [2nd Dept. 2008]), the defendants have failed to raise an issue of fact as to their First and Second Affirmative Defenses on this motion for summary judgment; they are accordingly dismissed.
The defendants Third Affirmative Defense sounding in estoppel fails. "The elements of estoppel are, with respect to the party estopped, (1) conduct which amounts to a false representation or concealment of material facts (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts.'" First Union Nat. Bank v Tecklenburg , 2 AD3d 575 (2nd Dept. 2003), quoting Airco Alloys Division v Niagara Mohawk Power Corp., 76 AD2d 68, 81-82 (1980), and citing Matter of Benincasa v Garrubbo, 141 AD2d 636, 638 (1988). "The party asserting estoppel must show with respect to himself: (1) lack of knowledge of the true facts; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change in his position." First Union Nat. Bank v Tecklenburg, supra, quoting Airco Alloys Division v Niagara Mohawk Power Corp., supra, and citing Matter of Benincasa v Garrubbo, supra . Assuming, arguendo, that the plaintiff knew of the contamination and concealed it and even misled the defendants via oral representations, the Phase I Environmental Study clearly alerted the defendants to the possibility of contamination and any reliance by them on the plaintiff's alleged representations to the contrary was not justified. One International, LLC v 822 McDonald Avenue LLC, 24 Misc 3d 1121 (a) (Sup. Ct. Kings County 2009), citing Masters v Visual Bldg. Inspections, Inc., 227 AD2d 597, 598 (2nd Dept. 1996); see also, U.S. Bank Nat. Ass'n v 23rd Street Development, LLC, 2009 WL 3337595 (Sup. Ct. New York County 2009), citing Shondel J. v Mark D. , 7 NY3d 320 (2006); Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Management, L.P. , 7 NY3d 96 , 106 (2006); Towers Charter Marine Corporation v Cadillac Ins. Company, 894 F.2d 516, 522 (2nd Cir. 1990); Nassau Trust Company v Montrose Concrete Products Corp., 56 NY2d 175 (1982). Furthermore, the specific merger clause in the parties' contract also precludes reliance on this defense. McPherson v Husbands , 54 AD3d 735 (2nd Dept. 2008); see also, Ryan v Pascale , 58 AD3d 711 (2nd Dept. 2009); Rigney v McCabe , 43 AD3d 896 (2nd Dept. 2007); Landes v Sullivan, 235 AD2d 657, 659 (3rd Dept. 1997); CFJ Associates of New York, Inc. v Hanson Industries, 274 AD2d 892 (3rd Dept. 2000); DiDomenico v Long Beach Plaza Corp., 2003 WL 22762712 (Sup. Ct. Nassau County 2003).
The defendants defaulted on February 25, 2009 and this action was commenced on or about May 11, 2009.The Statute of Limitations on both the note and the guaranty is six years. CPLR 213(2); See v Ach, supra; American Trading Co. v Fish, 42 NY2d 20 (1977). Accordingly, the Fourth Affirmative Defense fails as well.
The Fifth Affirmative Defense of laches fails because this is an action at law. Cognetta v Valencia Developers, Inc. , 8 AD3d 318 (2nd Dept. 2004), citing Matter of County of Rockland v Homicki, 227 AD2d 477, 478 (2nd Dept. 1996); Propco, Inc. v Birnbaum, 157 AD2d 774, 776 (2nd Dept. 1990), citing Brown v Lockwood, 76 AD2d 721 (2nd Dept. 1980). Similarly, "unclean hands is an equitable defense that is not available in [an] action at law for damages." Falk v Gallo, 18 Misc 3d 1146 (A) (Supreme Court 2006) citing Manshion Joho Center Co., Ltd. v Manshion Joho Center, Inc. , 24 AD3d 189 (1st Dept. 2005); County of Nassau v Eagle Chase Assocs., 144 Misc 2d 641 (Supreme Court Nassau County 1989).
The Sixth Affirmative Defense of breach of contract fails also ( see, infra).
The Seventh Affirmative Defense that plaintiff breached its obligation of good faith and fair dealing is also without merit. This implied covenant "embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract (quotations omitted)." Rooney v Slomowitz , 11 AD3d 864 (3rd Dept. 2004), quoting 511 W. 32nd Owners corp. v Jennifer Realty Co., 98 NY2d 144, 153 (2002) and Dalton v Educational Testing Serv., 87 NY2d 384 (1995). In view of the clear contractual limitations, the plaintiff's alleged misleading of the defendants regarding the property's condition cannot serve as a claim for breach of the covenant of good faith and fair dealing.
The Eighth Affirmative Defense fails too as the plaintiff has established the defendants' status as signatories.
By demonstrating the lack of merit to the defendants' Affirmative Defenses and submitting the mortgage, note, guaranty and other related documents along with proof of the defendants' failure to pay pursuant to the mortgage's and guaranty's terms, the plaintiff has established its entitlement to summary judgment against all of the defendants. See v Ach, 56 AD3d 457 (2nd Dept. 2008); Noy v Everest Equities, Inc. , 27 AD3d 629 (2nd Dept. 2006); Pollina v Blatt, 262 AD2d 384 (2nd Dept. 1999), lv den., 94 NY2d 758 (2000). The burden accordingly shifts to the defendants to establish the existence of a material issue of fact.
Turning to the defendants' counterclaims, the defendants purchased the property "as is" without warranty as to its condition. Where, as here, the contract specifically disclaims the existence of both oral and written warranties or representations, a cause of action alleging breach of contract based on such a warranty or representation cannot be maintained. Simone v Homecheck Real Estate Services, Inc. , 42 AD3d 518 (2nd Dept. 2007), citing Bedowitz v Farrell Development Co., Inc., 289 AD2d 432 (2nd Dept. 2001); One International, LLC v 822 McDonald Avenue LLC, supra, citing Masters v Visual Bldg. Inspections, Inc., supra . The First Counterclaim for breach of contract accordingly fails. In any event, "because title to the property ha[s] closed and the deed [has been] delivered, the doctrine of merger extinguished any claim the buyer may have had regarding the contract of sale." Simone v Homecheck Real Estate Services, Inc., supra, citing Ka Foon Lo v Curis , 29 AD3d 525 (2nd Dept. 2006).
The Second Counterclaim sounding in negligence is without merit and must be dismissed. A breach of contract cannot be considered a tort absent an independent duty, which has not been alleged here. Heffez v L G General Const., Inc. , 56 AD3d 526 (2nd Dept. 2008), citing Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382, 389 (1987); see also, Sargent v New York Daily News, L.P. , 42 AD3d 491 (2nd Dept. 2007). In any event, the negligence counter claim is time-barred.
Although a claim in negligent misrepresentation would be timely ( Milin Pharmacy Inc. v Cash Register Sys., Inc., 173 AD2d 686, 687 [2nd Dept. 1991] citing CPLR 213), and the defendants' recharacterize their negligence claim as one for negligent misrepresentation, the claim still fails. The elements of that claim are "(1) the existence of a special privity-like relationship imposing a duty on the Defendant to impart correct information to the Plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information." J.A.O. Acquisition v Stavitsky , 8 NY3d 144 (2007), rearg den., 8 NY3d 939 (2007), citing Parrott v Coopers Lybrand, 95 NY2d 479 (2000); Murphy v Kuhn, 90 NY2d 266, 270 (1997). In view of the clear warnings in the Phase I Environmental Study, the defendants could not have reasonably or justifiably relied on any representations by the plaintiff to the contrary. U.S. Bank Nat. Ass'n v 23rd Street Development, LLC, supra, citing Shondel J. v Mark D., supra; Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Management, L.P., supra; Towers Charter Marine Corporation v Cadillac Ins. Company, supra; Nassau Trust Company v Montrose Concrete Products Corp., supra . As for the Third Counterclaim, an action for common-law fraud lies where one party misrepresents a material fact, knowing it to be false, and another party, relying on the falsehood, suffers an injury as a consequence of the fraudulently induced reliance. CFJ Associates of New York, Inc. v Hanson Industries, supra at p. 894, citing Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413, 421 (1996); Graubard Mollen Dannett Horowitz v Moskovitz, 86 NY2d 112 (1995). "In order to establish a cause of action in fraud, plaintiff must show that defendant[s] misrepresented a material fact, [they] did so knowingly, the misrepresentation was justifiably relied on and some injury or damages resulted." Fitch v TMF Sys., 272 AD2d 775, 777 (3rd Dept. 2000), citing DonDero v Gardner, 267 AD2d 830, 830-831 (2nd Dept. 1999); Landes v Sullivan, supra. "[I]t is settled law that [while] a general merger clause does not serve to exclude parol evidence of fraud in the inducement, a specific disclaimer destroys the allegations in a plaintiff[s'] complaint that the agreement was executed in reliance upon [those] contrary oral [or written] [mis]representations (quotations omitted)." Long v Fitzgerald, 240 AD2d 971, 973 (3rd Dept. 1997), quoting Landes v Sullivan, supra; Weiss v Shapolsky, 161 AD2d 707 (2nd Dept. 1990), lv dism. 76 NY2d 889 (1990); and Danann Realty Corp. v Harris, 5 NY2d 317 (1959); Ore International, LLC v 822 McDonald Avenue, LLC, supra . Since the parties' contract specifically provided that the defendants inspected the property, that they agreed to accept it "as is," and that they were not induced by or relying on any representations not set forth in the contract, in proffering a fraud claim, they cannot not rely upon representations allegedly made by the plaintiff as to the property's condition extraneous to the contract, including the Phase I Environmental Study. McPherson v Husbands, supra; see also, Landes v Sullivan, supra, at p. 659; CFJ Associates of New York, Inc. v Hanson Industries, supra; DiDomenico v Long Beach Plaza Corp., supra; Rigney v McCabe, supra; Ore International, LLC v 822 McDonald Avenue LLC, supra .
Assuming, arguendo, that the merger clauses were not specific enough to bar the defendants' claims, "[i]n a real property contract, unless the facts represented are matters peculiarly within one party's knowledge, the other party must make use of means available to him to learn, by the exercise of ordinary intelligence, the truth of such matters or he will not be heard to complain that he was induced to . . . the transaction (quotations omitted)." Long v Fitzgerald, supra, quoting Danann Realty Corp. v Harris, supra, at p. 322, quoting Schumaker v Mather, 133 NY 590, 596 (1892) citing Casey v Masullo Bros. Bldrs., Inc., 218 AD2d 907, 908 (3rd Dept. 1995); Callahan v Miller, 194 AD2d 904, 906 (3rd Dept. 1993); see also, McPherson v Husbands, supra; CFJ Associates of New York, Inc. v Hanson Industries, supra; DiDomenico v Long Beach Plaza Corp., supra; Rigney v McCabe, supra; Ore International, LLC v 822 McDonald Avenue LLC, supra, at p. 5-6. The cause of the defendants' damages is their failure to fully investigate the property. In any event, in view of the doctrine of caveat emptor and the absence of any allegations that the plaintiff thwarted their efforts to conduct their own due diligence, the defendants' fraud claim fails. Ore International, LLC v 822 McDonald Avenue, LLC, supra, citing Matos v Crimmins , 40 AD3d 1053, 1054-1055 (2nd Dept. 2007); Jablenski v Rapalje, 14 AD3d 484, 485 (2nd Dept. 2005).
The Phase I Environmental Study was inconclusive about the property's condition. The Study noted that the inspection conducted was quite limited, and stated that it "was not and should not be considered a warranty or guarantee about the presence or absence of environmental contaminants which might affect" it. Moreover, fuel oil storage tanks as well as a waste spill was noted. "Under these circumstances, plaintiffs should have made use of such means available to them to have these areas thoroughly inspected prior to closing consistent with their contract rights and they may not now complain that they were induced into the contract by representations made by defendant." Long v Fitzgerald, supra, at p. 973; Ore International, LLC v 822 McDonald Avenue LLC, supra .
Tahini Investments, Ltd. v Bobrowsky ( 99 AD2d 489 [2nd Dept. 1984]), relied on by the defendants, is distinguishable. There, questions existed as to whether the concealed fact — that the property had been used as a dump — was "peculiarly within the seller's knowledge" and "whether plaintiff could have ascertained the site's presence with reasonable diligence." Here, the property's questionable history was openly disclosed by the plaintiff seller via the Phase I Environmental Study. Furthermore, when the property was ultimately tested, albeit five years after the defendants purchased it, the condition of the property was readily ascertained. There are no issues regarding the plaintiff's failure to disclose the possible contamination or the defendants' ability to learn about the property's condition. See, Chase Manhattan Bank v New Hampshire Ins. Co., 193 Misc 3d 580 (Supreme Court New York County 2002), citing Rodas v Manitaras, 159 AD2d 341 (1st Dept. 1990); see also, Grumman Allied Industries, Inc. v Rohr Industries, Inc., 748 F.2d 729 (2nd Cir. 1984); Dyn Corp. v GTE Corp., 215 F.Supp2d 308 (SDNY 2002).
The Fourth Counterclaim sounding in unjust enrichment also fails. "[A] claim alleging unjust enrichment may not be maintained where there is a valid and express agreement between the parties which explicitly covers the same specific subject matter for which the implied agreement is sought." MT Property, Inc. v Ira Weinstein Lary Weinstein, LLC , 50 AD3d 751 (2nd Dept. 2008), citing Kohn v Hartstein Hartstein, 294 AD2d 543 (2nd Dept. 2002).
As for the Fifth Counterclaim pursuant to the Navigation Law, "[a] property owner who is held strictly liable for the costs of a petroleum discharge is authorized to bring a claim as an injured person' for the cost of cleanup and removal against a prior owner or any other party who actually caused or contributed to the discharge." General Cas. Ins. Co. v Kerr Heating Products , 48 AD3d 512, 513 (2nd Dept. 2008) citing White v Long, 85 NY2d 564, 568-569 (1995); see also, Fuchs Bergh, Inc. v Lance Enterprises, Inc. , 22 AD3d 715 , 716=717 (2nd Dept. 2005); State v Metro Resources, Inc. , 14 AD3d 982 (3rd Dept. 2005). However, "[a] faultless owner's Navigation Law § 181(5) claim for reimbursement [only] lies against the party who actually caused the discharge.'" Popolizio v City of Schenectady, 269 AD2d 670 (3rd Dept. 2000), quoting State of New York v Tartan Oil Corp., 219 AD2d 111, 115 (3rd Dept. 1996); White v Long, supra; Fuchs Berg, Inc. v Lance Enterprises, Inc., supra, at p. 716-717. Thus, the plaintiff's liability in this case pursuant to the Navigation Law requires proof that it "actually caused or contributed to the discharge.'" Popolizio v City of Schenectady, supra, at p. 671, citing White v Long, 229 AD2d 178, 181 (3rd Dept. 1997); White v Long, supra, at p. 568-569; Fuchs Berg, Inc. v Lance Enterprises, Inc., supra, at p. 716-717. While the defendants repeatedly allege that the plaintiff knew about the contamination, they have not alleged that it caused or contributed to it, without which this claim must also be dismissed.
The defendants' opposition premised upon their alleged need for discovery (CPLR 3211[d], 3212[f]) to establish the plaintiff 's knowing deceit fails in view of the provisions of the contract as well as the contents of the Phase I Environmental Study. Under the circumstances extant, the plaintiff's personal knowledge of the contamination is irrelevant. See, S.S. Bank Nat. Ass'n. v 653 Eleventh Ave., LLC, 23 Misc 3d 1130 (A) (Supreme Court New York County 2009), citing Casey v Clemente , 31 AD3d 361 (2nd Dept. 2006); Oates v Marino, 106 AD2d 689 (1st Dept. 1984); see also, J.A.B. Madison Holdings, LLC v Levy Boonshaft, P.C., 22 Misc 3d 1138 (A) (Sup. Ct. New York County 2009).
The plaintiff is granted summary judgment on its claims.
The defendants' counterclaims are dismissed.
This shall constitute the Decision and Order of this Court.
Submit judgment on notice.