Opinion
No. 7362/2007.
2010-12-13
David H. LUTHER, Plaintiff v. Christine M. TURNER, Defendant.
Wayne I. Fried, Esq., for Plaintiff. Gabriel J. Ferber, Esq., for Defendant.
Wayne I. Fried, Esq., for Plaintiff. Gabriel J. Ferber, Esq., for Defendant.
FREDERICK J. MARSHALL, J.
FINDINGS OF FACT
1. David H. Luther and Diane M. Luther (hereinafter “plaintiff”/ “purchaser”) entered into a contract with Christine M. Turner (hereinafter “defendant”/ “seller”) dated June 6, 2005 whereby the seller agreed to sell to the purchaser, and purchaser agreed to buy, certain premises known as 25 King Anthony Way, Getzville, New York. The property consisted of a single family dwelling and the purchase price was $289,500.
2. Attached to the contract and made a part thereof was a property condition disclosure statement signed by both purchaser and seller pursuant to Real Property Law § 462.
3. Shortly after the closing the purchaser discovered that many of the casement windows contained wood rot, some to the extent that they were inoperable.
4. Prior to closing the purchaser hired a home inspector who inspected the property but did not open any of the windows. The purchaser also performed their own visual inspection of the property, but never opened the windows and never discovered the rotting condition until after the closing.
5. The contract of sale contained a provision whereby the seller represented that all buildings, improvements and various fixtures and property attached to, or appurtenant to the property shall be in working order at closing.
6. The Property Condition Disclosure Statement (hereinafter “PCDS”) contained the following question: “Is there any rot or water damage to the structure or structures?”. The seller answered no to that question.
7. The PCDS contains the following statements:
“Purpose of statement: this is a statement of certain conditions and information concerning the property known to the seller. This disclosure statement is not a warranty of any kind by the seller or by any agent representing the seller in this transaction. It is not a substitute for any inspections or tests and the buyer is encouraged to obtain his or her own independent professional inspections and environmental tests and also is encouraged to check public records pertaining to the property.”
“A knowingly false or incomplete statement by the seller on this form may subject the seller to claims by the buyer prior to or after the transfer of title.”
The PCDS also contains the following certification by the seller:
“Seller certifies that the information in this Property Condition Disclosure Statement is true and complete to the seller's actual knowledge as of the date signed by the seller.”
The PCDS also contains the following buyer's acknowledgment:
“Buyer acknowledges receipt of a copy of this statement and buyer understands that this information is a statement of certain conditions and information concerning the property known to the seller. It is not a warranty of any kind by the seller or seller's agent and is not a substitute for any home, pest, radon or other inspections or testing of the property or inspection of the public records.”
8. The plaintiffs testified that they did not open any of the windows during their inspection of the property, but that they noticed after closing that the windows were painted shut on the outside. Several days after the closing, they attempted to open some of the windows and were required to use a knife to break the paint seal before the windows would open. It was at this time that they discovered the rotting wood in the sills and frames of the windows.
9. The defendant testified that she was unaware of any rotting in her windows and that the windows had not been opened for many years prior to her placing the home on the market in 2005. Her husband testified that he painted the windows in 2001 and there was no proof that the windows had been painted at any time after 2001.
10. The defendant testified that when she filled out and signed the PCDS and answered “no” to the question about rot in the structure, she was unaware of any rotting windows, although she admitted on cross examination that the better answer to that question would have been “unknown”.
11. The Court finds the testimony of the plaintiffs to be credible insofar as they testified that the wood around the windows was rotted at the time of closing. This was supported by the testimony of the home inspector who returned to the property about a month after closing and found the wood around the windows to be rotted. The Court further finds it highly likely that the wood around the windows was rotted at the time the defendant executed the PCDS.
12. The Court also finds credible the testimony of the defendant that she was unaware of the condition of the windows and this was supported by the testimony of her husband, who said that he painted the windows in 2001 and that the windows were always kept shut. Both plaintiffs and the defendant testified that the house was well kept and maintained in general. Plaintiffs offered no evidence to support their contention that defendant knew about the condition of the windows. The testimony of Mrs. Luther's mother, Joan Mistretta, regarding an inculpatory statement made by the defendant was inconclusive.
CONCLUSIONS OF LAW
1. Plaintiffs contend that the defendant breached the contract (plaintiff's Exhibit 1 in evidence), in particular paragraph 5 by alleging that the windows were not in proper working order at the time of closing. Defendant contends that this clause does not survive the delivery of the deed, thereby extinguishing plaintiff's breach of contract claim. Roosa v. Campbell, 291 A.D.2d 901 [4th Dept.2002].
Paragraph 27 (D) of the contract provides that the survival of any other provision of the contract (other than attorneys fees) “shall be determined by applicable law or as specifically set forth in this Contract.” As held in Roosa, a real property sales contract merges with the deed except for those provisions which concern collateral matters, which cannot be performed until after conveyance or where the parties have expressed their intention that a provision shall survive delivery of the deed. See Roosa, id @ 902. Neither exception applies in this case. It is noted that the purchasers are entitled to a final inspection of the property. (see plaintiff's Exhibit 1, paragraph 15).By virtue of this inspection prior to closing, purchasers can determine if those items listed in paragraph 5 of the contract are in proper working order. If the purchasers fail to object as to the faulty condition of any particular item thereby properly preserving their right to redress, then that contractual provision is deemed to be merged with the deed and the purchaser may not recover for breach of contract. Arnold v. Wilkins, 61 AD3d 1236 [3rd Dept.2009].
For the same reasons, plaintiff's claim of breach of contract with respect to the PCDS must also fail.
2. Plaintiff's final claim alleges that they are entitled to recover from the defendant based on allegations of fraud. Specifically, plaintiffs contend that the defendant made a false representation in the PCDS by stating that there was no rot in the structure and that by painting over the windows, the defendant actively concealed the defective condition. “When a seller makes a false representation in a Disclosure Statement, such a representation may be proof of active concealment.” Simone v. Homecheck Real Estate Servs., Inc., 42 AD 3rd 518 [2nd Dept.2007]. In order to prevail on her claim of fraud, the plaintiff must establish, by clear and convincing evidence that the defendant made a representation of a material existing fact, that the statement was false, knowledge as the statement's falsity, actual deception and injury to the plaintiffs. Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y. 2nd 403 [1958]. The Court finds that the plaintiffs have not sustained their burden of proof.
Here, the Court finds that defendant did make a material misrepresentation of fact in the PCDS. However, the Court further finds that this misrepresentation was not willful. The Court is convinced that the defendant had no knowledge of the rotting condition in the windows at the time she signed the PCDS, nor did she have such knowledge at any time prior to the closing of this transaction.
Furthermore, there is no proof that the defendant actively concealed the defective condition. See Jablonski v. Rapalje, 14 AD 3d 484 [2nd Dept.2005]. The fact that the windows were painted by defendant's husband in 2001 does not lead this Court to the conclusion that the defendant engaged in active concealment. The house was not placed on the market until 2005, some four years after the windows were painted. There was no proof adduced at trial that the windows were painted at a later date.
Even if the plaintiffs had proved active concealment on the part of the defendant, their cause of action must fail because the plaintiffs could easily have discovered the defective windows merely by opening them while they had the opportunity to inspect the premises. Such a finding is confirmed by the fact that the plaintiffs did, in fact, discover the defective condition by opening the windows a few days after the closing took place. George v. Lumbrazo, 184 AD 2nd 1050 [4th Dept.1992].
3. For the reasons stated above, the defendant is entitled to a judgment dismissing the plaintiff's complaint in all respects, together with the costs and disbursements of this proceeding.
Submit judgment.