Opinion
September 8, 1975
Appeal from the Civil Court of the City of New York, Queens County, MARTHA ZELMAN, J.
S. Louis Mirel for appellants.
Stuart A. Hammerman for respondents.
MEMORANDUM.
Judgment unanimously reversed, without costs, and complaint dismissed.
Plaintiffs, the purchasers of real property from defendants, have brought an action for damages for breach of contract and fraudulent misrepresentation in connection with the purchase. Judgment was awarded to plaintiffs after trial (Young v Karol, 80 Misc.2d 70) and the instant appeal has been taken by the defendants therefrom.
The burden of proof was upon the plaintiffs to establish their case by a fair preponderance of the evidence, and this burden was not adequately met by a showing that the defendants were in violation of a provision of the city's building code by failing to connect the dwelling on the subject property to the city's sewer system. It was incumbent upon the plaintiffs to prove that the violation was one of record or that the defendants had received a notice thereof (see Montkane Funds v Ruff, 57 N.Y.S.2d 208, affd 269 App. Div. 1021; Northern Prop v Kuf Realty Corp., 30 Misc.2d 1, 3; Hattman v 212-214 South Ninth St. Corp., 147 N.Y.S.2d 552, 554; cf. Leyatta Corp. v Peters, 3 A.D.2d 724; Rosenthal v West, 274 App. Div. 442, 444-445; Horby Realty Corp. v Yarmouth Land Corp., 67 N.Y.S.2d 525, mod. 270 App. Div. 696; Harlank Realty Corp. v Rosenstock, 154 N.Y.S.2d 95).
Nor was the evidence sufficient to establish that there was a deliberate and fraudulent misrepresentation by the defendants with regard to whether the dwelling was connected to sewers (cf. Danann Realty Corp. v Harris, 5 N.Y.2d 317, 320; De Bell v Nothnagle Florida Realty Corp., 24 A.D.2d 825; see 24 N.Y. Jur, Fraud and Deceit, § 140). Furthermore, it is of the utmost significance that there was no reliance by the plaintiffs on a misrepresentation to their damage. It is clear from the record that the plaintiffs knew at the closing that there was no sewer connection and that they proceeded to close without seeking to make any reservations in this respect (cf. Staff v Lido Dunes, 47 Misc.2d 322, 326-327). Accordingly, since they had knowledge of the true facts, they cannot now claim to have relied upon a misrepresentation of those facts (24 N.Y. Jur, Fraud and Deceit, § 161).
Concur — GROAT, P.J., MARGETT and RINALDI, JJ.