| Clement v Delaney Realty Corp. |
| 2007 NY Slip Op 08401 [45 AD3d 519] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Ira Clement et al., Appellants, v Delaney Realty Corp. etal., Respondents. |
—[*1] Balsamo, Byrne, Cipriani & Ellsworth, Suffern, N.Y. (Richard M. Ellsworth of counsel), forrespondents Delaney Realty Corp. and Patricia A. Delaney. Canter Law Firm, P.C., White Plains, N.Y. (Nelson E. Canter of counsel), for respondentsFTF Inspection Corp. and Arcenio Pena. Robert V. Magrino, New City, N.Y., for respondent Peter Zelmanow. Burke, Miele & Golden, LLP, Suffern, N.Y. (Michael K. Burke and Dennis J. Mahoney III ofcounsel), for respondents William J. Shovlin and Susan Galligan Shovlin.
In an action, inter alia, to recover damages for active concealment, the plaintiffs appeal from(1) an order of the Supreme Court, Rockland County (Weiner, J.), dated October 3, 2006, whichgranted the motion of the defendants FTF Inspection Corp. and Arcenio Pena which was, ineffect, for summary judgment limiting their liability to the sum of $440, (2) an order of the samecourt also dated October 3, 2006, which granted the motion of the defendants Delaney RealtyCorp. and Patricia A. Delaney pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaintinsofar as asserted against them, (3) an order of the same court also dated October 3, 2006, whichgranted the motion of the defendant Peter Zelmanow pursuant to CPLR 3211 (a) (1) and (7) todismiss the [*2]complaint insofar as asserted against him, and (4)an order of the same court also dated October 3, 2006, which granted that branch of the motionof the defendants William J. Shovlin and Susan Galligan Shovlin which was pursuant to CPLR3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against them.
Ordered that the first order is affirmed; and it is further,
Ordered that the second, third, and fourth orders are reversed, on the law, the motion of thedefendants Delaney Realty Corp. and Patricia A. Delaney to dismiss the complaint insofar asasserted against them is denied, the motion of the defendant Peter Zelmanow to dismiss thecomplaint insofar as asserted against him is denied, and that branch of the motion of thedefendants William J. Shovlin and Susan Galligan Shovlin which was to dismiss the complaintinsofar as asserted against them pursuant to CPLR 3211 (a) (1) and (7) is denied; and it is further,
Ordered that one bill of costs is awarded to the defendants FTF Inspection Corp. and ArcenioPena payable by the plaintiffs, and one bill of costs is awarded to the plaintiffs payable by thedefendants Delaney Realty Corp. and Patricia A. Delaney, Peter Zelmanow, and William J.Shovlin and Susan Galligan Shovlin, appearing separately and filing separate briefs.
The plaintiffs retained the services of the defendant Patricia A. Delaney of the defendantDelaney Realty Corp. (hereinafter collectively Delaney) to assist them in finding and purchasinga home. They were shown the home of William J. Shovlin and Susan Galligan Shovlin(hereinafter collectively the Shovlins), which the plaintiffs offered to buy subject to aninspection. Based on Delaney's alleged recommendation, the plaintiffs entered into a contract fora home inspection with the defendants Arcenio Pena and FTF Inspection Corp. (hereinaftercollectively FTF), which included various limitations, as well as a provision limiting the homeinspector's liability. FTF issued its report to the plaintiffs. Then, with the assistance of theirattorney, the defendant Peter Zelmanow, the plaintiffs entered into a contract of sale andsubsequently proceeded to closing.
Within weeks of taking possession of the house in November 2003, the plaintiffs discoveredan allegedly serious mold condition, which caused them eventually to vacate the house in June2004. Some 20 months later, in February 2006, the plaintiffs commenced this action against FTF,Delaney, Zelmanow, and the Shovlins. After joining issue, FTF moved for summary judgment, ineffect, limiting its liability to the sum of $440. Delaney, Zelmanow, and the Shovlins submittedseparate pre-answer motions to dismiss the complaint insofar as asserted against them pursuantto CPLR 3211 (a) (1) and (7). The Supreme Court granted all of the motions.
Regarding FTF's motion for summary judgment, in effect, limiting its liability to the sum of$440, FTF established its prima facie entitlement to judgment as a matter of law based on a clearcontractual provision limiting the plaintiffs' damages to the sum of $440. In opposition, theplaintiffs failed to raise any triable issue of fact as to the existence of circumstances that wouldrender ineffectual the limitation of liability provision (see Schietinger v Tauscher Cronacher Professional Engrs., P.C., 40AD3d 954, 955 [2007]; Rector vCalamus Group, Inc., 17 AD3d 960, 961 [2005]; Peluso v Tauscher CronacherProfessional Engrs., 270 AD2d 325 [2000]). Contrary to the plaintiffs' contention, theiropposing papers failed to show that FTF's conduct rose to the level of gross negligence (seeSchietinger v Tauscher Cronacher Professional Engrs., P.C., 40 AD3d at 956), as it would bespeculative to conclude that many of the problems and conditions noted by the plaintiffs' [*3]expert on December 22, 2005, were also present and discoverablewhen FTF inspected the property some 28 months earlier. Nor can the plaintiffs avoid thelimitation of liability provision merely by couching their claims against FTF in the familiarlanguage of fraud. A cause of action sounding in fraud does not lie where, as here, "the onlyfraud claim relates to a breach of contract" (Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d1073, 1076 [2007]). Accordingly, the Supreme Court properly limited FTF's liability to thesum of $440.
With respect to the remaining defendants' pre-answer motions to dismiss, the applicablestandards are familiar. "A motion to dismiss made pursuant to CPLR 3211 (a) (1) will fail unlessthe documentary evidence that forms the basis of the defense resolves all factual issues as amatter of law, and conclusively disposes of the plaintiff[s'] claim" (Shaya B. Pac., LLC v Wilson, Elser,Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37 [2006]). "Moreover, a motion todismiss made pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true andaccording them every possible inference favorable to the plaintiff[s], the complaint states in somerecognizable form any cause of action known to our law" (id. at 38). Whether theplaintiffs can ultimately establish their allegations "is not part of the calculus in determining amotion to dismiss" (EBC I, Inc. vGoldman, Sachs & Co., 5 NY3d 11, 19 [2005]).
Applying these standards, we cannot conclude, as the Supreme Court did, that the allegationsin the complaint, taken as true, fail to state any cognizable cause of action against Delaney,Zelmanow, and the Shovlins (seeSimone v Homecheck Real Estate Servs., Inc., 42 AD3d 518 [2007]; Gelfand v Oliver, 29 AD3d 736[2006]) or that the documentary evidence submitted by those defendants conclusively disposes ofthe plaintiffs' causes of action. Accordingly, those defendants' pre-answer motions should havebeen denied.
The parties' remaining contentions are without merit. Rivera, J.P., Skelos, Fisher andAngiolillo, JJ., concur.