We therefore conclude that plaintiff raised an issue of fact with respect to defendants' actual knowledge of flooding on the property ( see Pettis v Haag, 84 AD3d 1553, 1555; Meyers, 69 AD3d at 1097). With respect to the fraud cause of action, it is well settled that, "[t]o establish a cause of action for fraud, plaintiff must demonstrate that defendants knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages" (Klafehn v Morrison, 75 AD3d 808, 810; see Mikulski v Battaglia, 112 AD3d 1355, 1356; Pettis, 84 AD3d at 1554). "[F]alse representation in a [property condition] disclosure statement may constitute active concealment in the context of fraudulent nondisclosure" (Klafehn, 75 AD3d at 810; see Sample v Yokel, 94 AD3d 1413, 1415; Pettis, 84 AD3d at 1554-1555).
We reject plaintiff's sole contention on appeal, that, in granting the motion with respect to the fraud cause of action, the court improperly evaluated defendant's credibility with respect to his representations on the disclosure statement that he had no knowledge of asbestos on the property or material defects in the sewage system." 'Although New York traditionally adheres to the doctrine of caveat emptor in an arm's length real property transfer..., Real Property Law article 14 codifies a seller's disclosure obligations for certain residential real property transfers,'" such as the transaction at issue here (Sample v Yokel, 94 A.D.3d 1413, 1415 [4th Dept 2012]; see Klafehn v Morrison, 75 A.D.3d 808, 810 [3d Dept 2010]). "False representation in a property condition disclosure statement mandated by Real Property Law § 462 (2) may constitute active concealment in the context of fraudulent nondisclosure..., [but] to maintain such a cause of action, the buyer[ ] must show, in effect, that the seller thwarted the buyer['s] efforts to fulfill the buyer['s] responsibilities fixed by the doctrine of caveat emptor" (Sample, 94 A.D.3d at 1415 [internal quotation marks omitted]; see Klafehn, 75 A.D.3d at 810).
Accordingly, a claim under Real Property Law § 465(2) must allege the seller's willful failure to comply with one or more of the obligations imposed on the seller under [Real Property Law] article 14, resulting in the buyer's damages, and a claim for willful failure to disclose under this provision must allege that the seller had actual knowledge of a condition that was misrepresented by the disclosure contained in the PCDS" ( Meyers v. Rosen, 69 A.D.3d 1095, 1097, 893 N.Y.S.2d 354 [2010], quoting Real Property Law §§ 461[3] ; 462[2] ). Similarly, a cause of action for fraud or intentional misrepresentation requires proof "that [the] defendant[ ] knowingly misrepresented a material fact upon which [the] plaintiff[ ] justifiably relied, causing [the plaintiff's] damages" ( Pettis v. Haag, 84 A.D.3d at 1554, 923 N.Y.S.2d 745 ; seeKlafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347 [2010] ). "A cause of action based upon negligent misrepresentation requires not only carelessness in imparting words upon which others rely to their damage, but also that such information be ‘expressed directly, with knowledge or notice that it will be acted upon, to one whom the author is bound by some relation of duty, arising out of contract or otherwise, to act with care if he [or she] acts at all’ " ( Chase Manhattan Bank v. Edwards, 87 A.D.2d 935, 936, 450 N.Y.S.2d 76 [1982], affd 59 N.Y.2d 817, 464 N.Y.S.2d 739, 451 N.E.2d 486 [1983], quoting White v. Guarente, 43 N.Y.2d 356, 363, 401 N.Y.S.2d 474, 372 N.E.2d 315 [1977] ).Defendant experienced some moisture and periodic water infiltration in the basement beginning in 1999, soon after he purchased the house.
Disclosure is based on the seller's actual knowledge of a defect or condition affecting the property at the time the seller signs the disclosure ... While false representation in a disclosure statement may constitute active concealment in the context of fraudulent nondisclosure ..., to maintain such a cause of action, the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor" (Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347 [internal quotation marks omitted] ). Furthermore, "[t]he mere fact that [a] defendant undertook previous repair work on the house is not tantamount to concealment of a defective condition" (Hecker v. Paschke, 133 A.D.3d 713, 717, 19 N.Y.S.3d 568 ).
Furthermore, we agree with plaintiff that the court otherwise properly denied that part of defendant's cross motion for summary judgment dismissing the fraud cause of action on the merits. It is well settled that, “[t]o establish a cause of action for fraud, plaintiff must demonstrate that defendant [ ] knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages” (Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347). False representation in a property condition disclosure statement mandated by Real Property Law § 462(2) “may constitute active concealment in the context of fraudulent nondisclosure ..., [but] to maintain such a cause of action, ‘the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor’ ” (Klafehn, 75 A.D.3d at 810, 906 N.Y.S.2d 347).
Even assuming, arguendo, that defendant had the requisite relationship with plaintiffs that required her to disclose correct information to plaintiffs concerning the property ( see Meyers v. Rosen, 69 A.D.3d 1095, 1096, 893 N.Y.S.2d 354), we conclude that defendant met her initial burden on that part of the motion by submitting evidence that the information imparted to plaintiffs was correct and that, in opposition thereto, plaintiffs failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Turning now to the fraud cause of action, it is well settled that, “[t]o establish a cause of action for fraud, plaintiff[s] must demonstrate that defendant[ ] knowingly misrepresented a material fact upon which plaintiff[s] justifiably relied and which caused plaintiff[s] to sustain damages” ( Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347). “Although New York traditionally adheres to the doctrine of caveat emptor in an arm's length real property transfer ..., Real Property Law article 14 codifies a seller's disclosure obligations for certain residential real property transfers” ( id.), including this residential real property transaction ( see § 461[5] ). False representation in a property condition disclosure statement mandated by Real Property Law § 462(2) “may constitute active concealment in the context of fraudulent nondisclosure ..., [but] to maintain such a cause of action, ‘the buyer[s] must show, in effect, that the seller thwarted the buyer [s'] efforts to fulfill the buyer[s'] responsibilities fixed by the doctrine of caveat emptor’ ” ( Klafehn, 75 A.D.3d at 810, 906 N.Y.S.2d 347). Here, defendant met her initial burden on that part of the motion with respect to the fraud cause of action by submitting evidence that she did not knowingly fail to disclose any defects in the property, and in opposition plaintif
To establish their cause of action for fraud, plaintiffs must demonstrate that defendants knowingly misrepresented a material fact upon which plaintiffs justifiably relied, causing their damages. "Although New York traditionally adheres to the doctrine of caveat emptor in an arm's length real property transfer," a seller may be liable for failing to disclose information if the conduct constitutes active concealment ( Klafehn v Morrison, 75 AD3d 808, 810; see Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518, 520). A false representation in a disclosure statement may constitute active concealment ( see Anderson v Meador, 56 AD3d 1030, 1035; Simone v Homecheck Real Estate Servs., Inc., 42 AD3d at 520-521). To prevail upon such a claim, plaintiffs must demonstrate that the false representation prevented fulfillment of their own obligations imposed by the doctrine of caveat emptor and that they justifiably relied upon the false representation ( see Klafehn v Morrison, 75 AD3d at 810).
Although plaintiff served a "notice" stating that defendant's motion was being converted to a summary judgment motion, such unilateral action does not satisfy the notice requirements of CPLR 3211(c) (seeMihlovan v. Grozavu, 72 N.Y.2d 506, 508 n, 534 N.Y.S.2d 656, 531 N.E.2d 288 [1988] ). Regarding the merits, "[t]o establish a cause of action for fraud, plaintiff must demonstrate that defendant[ ] knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages" ( Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347 [3d Dept. 2010] ; seeMcGovern v. Best Bldg. & Remodeling, 245 A.D.2d 925, 926, 666 N.Y.S.2d 854 [3d Dept. 1997] ). A fraud claim may also stem from "acts of concealment where the defendant had a duty to disclose material information" ( Kaufman v. Cohen, 307 A.D.2d 113, 119–120, 760 N.Y.S.2d 157 [1st Dept. 2003] ; seeMandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 179, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ).
First, we reject defendants' assertion that they are entitled to summary judgment because the doctrine of caveat emptor provides a complete defense to this action. “ ‘Although New York traditionally adheres to the doctrine of caveat emptor in an arm's length real property transfer,’ a seller may be liable for failing to disclose information if the conduct constitutes active concealment” ( Pettis v. Haag, 84 A.D.3d 1553, 1554, 923 N.Y.S.2d 745 [2011], quoting Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347 [2010] [citation omitted] ). “A false representation in a disclosure statement may constitute active concealment” ( Pettis v. Haag, 84 A.D.3d at 1554, 923 N.Y.S.2d 745 [citation omitted]; see Anderson v. Meador, 56 A.D.3d 1030, 1035, 869 N.Y.S.2d 233 [2008] ). When it has been established that a seller has misrepresented a material fact, the purchaser may prevail on a claim of fraud if he or she can demonstrate justifiable reliance on the misrepresentation ( see Tanzman v. La Pietra, 8 A.D.3d 706, 707, 778 N.Y.S.2d 199 [2004];Caramante v. Barton, 114 A.D.2d 680, 683, 494 N.Y.S.2d 498 [1985] ).
Thus, the imposition of a constructive trust was proper ( see Johnson v. Lih, 216 A.D.2d 821, 823, 628 N.Y.S.2d 458;Tordai v. Tordai, 109 A.D.2d 996, 997, 486 N.Y.S.2d 802;see generally Sharp, 40 N.Y.2d at 122, 386 N.Y.S.2d 72, 351 N.E.2d 721). We further conclude that, viewing the evidence in the light most favorable to plaintiff, there is no fair interpretation of the evidence to support the court's determination in favor of plaintiff on the fraud cause of action ( see generally Home Insulation & Supply, Inc., 59 A.D.3d at 1079, 872 N.Y.S.2d 808;Treat, 46 A.D.3d at 1404–1405, 848 N.Y.S.2d 796). It is well settled that, “[t]o establish a cause of action for fraud, plaintiff must demonstrate that defendant[ ] knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages” ( Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347). We agree with defendant that no evidence was adduced at trial to establish that he misrepresented any material fact to plaintiff.