| McPherson v Husbands |
| 2008 NY Slip Op 06810 [54 AD3d 735] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Wayne McPherson et al., Appellants, v Erskine Husbandset al., Respondents, et al., Defendant. |
—[*1] John H. Teschner, New York, N.Y., for respondent Dennis Douglas, P.C.
In an action to recover damages for negligence, breach of contract, and fraud, the plaintiffsappeal from (1) an order of the Supreme Court, Nassau County (Mahon, J.), dated March 19,2007, which granted the renewed motion of the defendant Dennis Douglas, P.C., pursuant toCPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it, and (2) an order of thesame court dated March 20, 2007, which granted the motion of the defendant Erskine Husbandsfor summary judgment dismissing the complaint and all cross claims insofar as asserted againsthim.
Ordered that the order dated March 19, 2007, is reversed, on the law, and the renewedmotion of the defendant Dennis Douglas, P.C., pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint insofar as asserted against it is denied; and it is further,
Ordered that the order dated March 20, 2007, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs payable by the defendant DennisDouglas, P.C.
This action arises out of the sale of a house located in Baldwin, New York, pursuant to acontract of sale between the defendant Erskine Husbands, as seller, and the plaintiffs, aspurchasers. Prior to closing, the defendant Dennis Douglas, P.C. (hereinafter Douglas), anengineer, performed an inspection of the house for the plaintiffs, which revealed the presence oftermites in the crawl [*2]space in front of the house. In hisinspection report, Douglas noted, in addition to the termite condition, among other things, theboiler was in "good shape, showing no sign of leaking activity."
In accordance with certain provisions in the rider attached to the contract of sale, upon beingadvised of the results of the inspection, Husbands hired the defendant Eliminex Pest Control(hereinafter Eliminex) to treat the termite condition, which it did by spraying in the crawl spaceand placing termite baits around the perimeter of the house. After taking possession of thepremises, the plaintiffs discovered extensive termite damage throughout the house and a leak inthe oil line feeding the boiler tank, resulting in contamination of the soil under the house, whichultimately had to be removed by a specialty company, monitored by the Department ofEnvironmental Conservation.
The plaintiffs brought this action against Husbands, Eliminex, and Douglas, alleging breachof contract with regard to all of the defendants, negligence with regard to Douglas and Eliminex,and fraud in the inducement with regard to Husbands.
The Supreme Court properly granted Husbands' motion for summary judgment dismissingthe complaint insofar as asserted against him. Husbands established his entitlement to judgmentas a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) bysubmitting an affidavit establishing that the premises were made fully available for inspection bythe plaintiffs and their agents without restriction as to length or scope of inspection. Under thesecircumstances, "the facts represented were not matters peculiarly within the party's knowledge,"the plaintiffs had the means available to them of knowing, by the exercise of ordinaryintelligence, the truth or the real quality of the subject of the representation, and as it was theirresponsibility to make use of those means, they will not be heard to complain that they wereinduced to enter into the transaction by misrepresentations (Bando v Achenbaum, 234AD2d 242, 243 [1996]; see McManus v Moise, 262 AD2d 370, 371 [1999]; Long vFitzgerald, 240 AD2d 971, 973 [1997]). Since, in opposition to the motion, the plaintiffsfailed to submit any evidence showing that Husbands or his agents "thwarted [their] efforts tofulfill [their] responsibilities fixed by the doctrine of caveat emptor" (Jablonski v Rapalje, 14 AD3d 484,485 [2005]; see Platzman v Morris, 283 AD2d 561, 562 [2001]), they failed to raise anytriable issue of fact precluding the granting of summary judgment to Husbands (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals vAssociated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).
Husbands also established his entitlement to summary judgment on the additional issue ofmerger, by submitting a copy of the rider attached to and made a part of the contract of sale,pursuant to which the plaintiffs specifically disclaimed reliance on any representations, written ororal, of Husbands and/or his representative. Where, as here, "the parties inserted a specificmerger clause into a rider of their contract which declared that the buyers had inspected thepremises, agreed to accept it 'as is', and understood that no representations were made as to itscondition, the buyers' claim of fraud against the sellers was extinguished upon closing"(Venezia v Coldwell Banker Sammis Realty, 270 AD2d 480, 481 [2000]; see Cohanv Sicular, 214 AD2d 637, 638 [1995]; London v Courduff, 141 AD2d 803, 804[1988]). Since the plaintiffs failed to raise any triable issue of fact regarding this issue, the courtproperly granted Husbands summary judgment on this additional issue (see Zuckerman v Cityof New York, 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs., 46 NY2dat 1067).
However, the court erred in granting Douglas's renewed motion pursuant to CPLR 3211 (a)(1) to dismiss the complaint insofar as asserted against it based on a limitation of liability clausecontained in an unsigned invoice. Though Douglas referred to the invoice as an "inspection [*3]agreement," neither the invoice nor the inspection report, whichalso contained a provision limiting liability, was signed by either of the plaintiffs. Absentdocumentary proof of the plaintiffs' agreement to these provisions limiting liability, and in lightof the denial by the plaintiff Wayne McPherson that the plaintiffs received the invoice or agreedto the provisions limiting liability, the documentary evidence forming the basis of this defensefailed to resolve the material factual issues as a matter of law, as required in order to prevail on amotion pursuant to CPLR 3211 (a) (1) (see Saxony Ice Co., Div. of Springfield Ice Co., Inc. v Ultimate Energy Rest.Corp., 27 AD3d 445, 446 [2006]; New York City Hous. Auth. v Fosroc Inc.,226 AD2d 103, 104 [1996]; cf.Rector v Calamus Group, Inc., 17 AD3d 960 [2005]; Peluso v Tauscher CronacherProfessional Engrs., 270 AD2d 325 [2000]). Florio, J.P., Angiolillo, McCarthy andDickerson, JJ., concur.