| Arnold v Wilkins |
| 2009 NY Slip Op 03074 [61 AD3d 1236] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Paul M. Arnold et al., Appellants, v Gale Wilkins et al.,Respondents. |
—[*1] Thorn, Gershon, Tymann & Bonanni, L.L.P., Albany (Paul D. Jureller of counsel), forrespondents.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Dawson, J.), entered March 3,2008 in Essex County, upon a decision of the court in favor of defendants.
Plaintiffs purchased an existing home from defendants in 2001. Prior to closing, the partiesentered into a contract of sale which provided that the conveyance would include a sewagedisposal system "in good working order as of the date of closing." A home inspection conductedprior to the closing revealed no problems with the sewage system; however, several months afterthe closing, the system experienced severe problems that caused wastewater to back up into thehome. A subsequent inspection by an engineer revealed that the home was constructed with aconventional septic system instead of a "mound" system which, according to the engineer, wouldbe better suited to the property's soil conditions. Plaintiffs then commenced this action allegingbreach of contract and fraud. Supreme Court dismissed the complaint after a bench trial and wenow affirm.[FN1]
With respect to plaintiffs' claim that defendants breached the contract of sale, we note that"[u]nder the well-established doctrine of merger, provisions in a contract for the sale of real[*2]estate merge into the deed and are thereby extinguishedabsent the parties' demonstrated intent that a provision shall survive transfer of title" (Hunt vKojac, 245 AD2d 858, 858-859 [1997]; see Schoonmaker v Hoyt, 148 NY 425,429-430 [1896]; Alexy v Salvador, 217 AD2d 877, 878 [1995]). Here, plaintiffs contendthat the parties intended that defendants' promise to convey a sewage system in good workingorder would survive the closing. However, the sales contract does not specify that any of itsprovisions are to survive the transfer of title and nothing in the record evidences such anintent.[FN2]
Plaintiffs alternatively contend that the merger doctrine does not apply here because thefaulty sewage system was a "latent defect." In support, they rely on Fehling v Wicks(179 Misc 2d 1041 [1999]) for the proposition that "where the purchaser discovers latent defectswhich are discoverable only after the purchaser occupies the premises," the merger doctrine isinapplicable (id. at 1042). Importantly, however, the purported "latent defect" exceptionto the merger doctrine has not been adopted by the Appellate Divisions or the Court of Appealsin these circumstances. In any event, plaintiffs' own proof established that the claimed defect inthe septic system existed since construction of the home in 1995 and was easily identified byplaintiffs' engineer upon investigation after the system backed up. Thus, it was "discoverable"prior to the closing.
Based upon the foregoing, we find that any claims arising from the contract of sale wereextinguished by the merger doctrine (see Rothstein v Equity Ventures, 299 AD2d 472,475 [2002]; White v Long, 204 AD2d 892, 894 [1994], mod on other grounds 85NY2d 564 [1995]; Summit Lake Assoc. v Johnson, 158 AD2d 764, 766 [1990]).Accordingly, we do not address the parties' arguments concerning whether the sewage systemwas, in fact, in good working order at the time of closing.
Rose, Kane, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed, withcosts.
Footnote 1: On appeal, plaintiffs haveabandoned their fraud claim.
Footnote 2: We are not persuaded thatJoseph v Creek & Pines (217 AD2d 534 [1995], lv dismissed 86 NY2d 885[1995], lv denied 89 NY2d 804 [1996]) requires a different conclusion. Although thesales contract in Joseph employed similar language, the underlying facts aredistinguishable.