| Sentlowitz v Cardinal Dev., LLC |
| 2009 NY Slip Op 05532 [63 AD3d 1137] |
| June 30, 2009 |
| Appellate Division, Second Department |
| James Sentlowitz et al., Respondents, v CardinalDevelopment, LLC, et al., Appellants, et al., Defendant. |
—[*1] Rice & Amon, Suffern, N.Y. (Terry Rice of counsel), for appellant Planning Board ofVillage of Airmont, New York. Condon Resnick, LLP, Nanuet, N.Y. (Brian K. Condon of counsel), forrespondents.
In an action, inter alia, to recover damages for fraud, breach of contract, and breach offiduciary duty, the defendants Cardinal Development, LLC, and Brian Brooker, and thedefendant Planning Board of Village of Airmont, New York, separately appeal, as limited bytheir respective briefs, from so much of an order of the Supreme Court, Orange County(Berliner, J.), dated May 1, 2008, as denied their separate motions to dismiss the complaintpursuant to CPLR 3211 (a) (7) insofar as asserted against each of them, and granted theplaintiffs' cross motion for leave to serve an amended complaint.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthose branches of the motion of the defendants Cardinal Development, LLC, and Brian Brookerwhich were to the dismiss the second, third, fourth, fifth, and sixth causes of action insofar asasserted against them, and substituting therefor a provision granting those branches of themotion, (2) by deleting the provision thereof denying the motion of the defendant PlanningBoard of Village of Airmont, New York, to dismiss the complaint insofar as asserted against itand substituting therefor a provision granting that motion, and (3) by deleting the provisionthereof granting, in its entirety, the plaintiffs' cross motion for leave to serve an amendedcomplaint, and substituting therefor a provision granting the cross motion only to the extent ofpermitting the plaintiffs to serve an amended complaint asserting a cause of action allegingfraudulent concealment against the defendants Cardinal Development, LLC, and Brian Brooker,and otherwise denying the cross motion; as so modified, the order is affirmed insofar as appealedfrom, with costs to the defendant Planning Board of Village of Airmont, New York, payable bythe plaintiffs.
This action involves the sale of real property to the plaintiffs by the defendant CardinalDevelopment, LLC. The plaintiffs, asserting causes of action to recover damages for fraudulentconcealment, breach of contract, breach of the implied covenant of good faith and fair dealing,breach [*2]of fiduciary duty, constructive fraud, and violation ofGeneral Business Law § 349, allege that the appellants concealed the fact that the subjectproperty contained land designated as wetlands by the United States Army Corps of Engineers.
The Supreme Court properly determined that the amended complaint stated a cognizablecause of action to recover damages for fraudulent concealment against the defendants CardinalDevelopment, LLC (hereinafter Cardinal), and Brian Brooker (see Rozen v 7 Calf Cr.,LLC, 52 AD3d 590, 592-593 [2008]). However, the remaining causes of action insofar asasserted against those defendants should have been dismissed for failure to state a cause ofaction. The plaintiffs failed to state causes of action to recover damages for breach of contractand breach of the implied covenant of good faith and fair dealing. Since title to the property hadclosed and the deed was delivered, the plaintiffs' claims arising from the contract of sale wereextinguished by the doctrine of merger (see Ka Foon Lo v Curis, 29 AD3d 525 [2006]).The causes of action to recover damages for breach of fiduciary duty and constructive fraudshould have been dismissed because the plaintiffs failed to allege facts to demonstrate that afiduciary relationship existed between Cardinal and Brooker, on the one hand, and the plaintiffs,on the other (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 21 [2008]).The cause of action to recover damages for violation of General Business Law § 349should have been dismissed since the amended complaint failed to allege that the conduct ofCardinal and Brooker had a broad impact on consumers at large (see New York Univ. vContinental Ins. Co., 87 NY2d 308, 320 [1995]).
The motion of the defendant Planning Board of Village of Airmont, New York (hereinafterthe Planning Board), to dismiss the complaint insofar as asserted against it should have beengranted in its entirety. Under the circumstances of this case, to avoid the application of thedefense of governmental immunity, it was incumbent upon the plaintiffs to allege facts sufficientto support the conclusion that the government actions complained of were ministerial acts, orthat a special relationship existed between the them and the Planning Board (see Pelaez vSeide, 2 NY3d 186, 198-199 [2004]; Kadymir v New York City Tr. Auth., 55 AD3d549 [2008]; Movable Homes v City of N. Tonawanda, 56 AD2d 718 [1977]). They failedto do so.
The parties' remaining contentions either need not be reached in light of our determination orare without merit. Mastro, J.P., Fisher, Eng and Hall, JJ., concur.