| Stoian v Reed |
| 2009 NY Slip Op 07713 [66 AD3d 1278] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Alexandru Stoian et al., Appellants, v Terrance Reed et al.,Respondents. |
—[*1] Capello, Linden & Ladouceur, Potsdam (Roger B. Linden of counsel), forrespondents.
Spain, J. Appeal from an order of the Supreme Court (Richards, J.), entered March 21, 2008in St. Lawrence County, which, among other things, granted defendants' motion for summaryjudgment dismissing the complaint.
In August 2002, almost three years after purchasing a single-family residence located in theVillage of Potsdam, St. Lawrence County from defendants, plaintiffs commenced this breach ofcontract action seeking monetary damages for claimed undisclosed defects in the home. Afterdepositions were taken and 5½ years after the action was commenced, defendantssuccessfully moved for summary judgment. On plaintiffs' appeal, we now affirm.
Plaintiffs allege that, despite defendants' representations prior to the sale regarding the goodcondition of the house, after they moved in plaintiffs discovered problems with the heatingsystem, the water supply, the water softening system, the roof, the electrical system, ants, miceand water in the basement. In New York, the "doctrine of caveat emptor imposes no duty upon avendor to disclose any information concerning the property in an arm's length real estatetransaction" (Bethka v Jensen, 250 AD2d 887, 887-888 [1998]; accord Gizzi vHall, 300 AD2d 879, 881 [2002]; but see Real Property Law art 14 [enacted in2001]). An exception exists only where the conduct by the seller rises to the level of activeconcealment (see Anderson vMeador, 56 AD3d 1030, 1034-1035 [2008]; Boyle v McGlynn, 28 AD3d 994, 995 [2006]). Conclusoryallegations regarding alleged concealed conditions, without factual details as to the manner inwhich such concealment was undertaken, are insufficient to state a cause of action in this regard(see Mancuso v Rubin, 52 AD3d580, 584 [2008]).
Plaintiffs contend that defendants failed to establish that they are entitled to judgment as amatter of law and that material issues of fact exist with regard to defendants' active concealmentof latent defects which warrant a trial (see CPLR 3212 [b]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). In support of the summary judgment motion, defendantTerrance Reed (hereinafter defendant) testified in his deposition that plaintiff Alexandru Stoian(hereinafter plaintiff) not only personally inspected the home 10 times prior to the purchase, buthe hired a professional inspector who inspected the house before the closing. Defendant alsotestified that he disclosed all the structural and operational defects in the premises of which hewas aware when he signed the purchase agreement. Specifically, he informed plaintiff of priorproblems with the roof, water in the basement and leaking windows and explained what stepshad been taken to remedy those problems. Apart from the occasional mouse that had beenpromptly dealt with, defendant stated that he had never observed an infestation problem withmice or ants. Based upon this evidence, we conclude that Supreme Court properly determinedthat defendants met their initial burden of establishing entitlement to summary judgment (see Rector v Calamus Group, Inc., 17AD3d 960, 961 [2005]).
The burden thus shifted to plaintiffs to demonstrate that a material question of fact exists asto whether defendants might be found liable to plaintiffs (see Zuckerman v City of NewYork, 49 NY2d at 563). Critically lacking in plaintiffs' proof is any evidence of activeconcealment. Although plaintiff's deposition testimony stresses that defendants assured him thatthe property was in "perfect shape" and identifies numerous problems with the structure, noevidence was offered that defendants concealed any of the alleged defects or otherwise interferedwith plaintiffs' right to inspect the property. Indeed, plaintiff admitted during his deposition thathe had no information that could establish that defendants knew of, much less concealed, manyof the alleged deficiencies. Instead, plaintiff argued that defendant knowingly chose repairoptions for the leaking windows and roof which were insufficient to provide long-term solutionsto those problems. He also suggests in his deposition testimony that defendants must have beenaware of the infestation problem and other defects because plaintiffs readily discovered themafter moving in to the house. These conclusory allegations, however, are insufficient to raise atriable issue of fact with respect to whether defendants took steps to actively conceal latentdefects in the property from plaintiffs (see Rector v Clamus Group, Inc., 17 AD3d at961; cf. Anderson v Meador, 56 AD3d at 1034-1035; Boyle v McGlynn, 28AD3d at 995-996).
We also reject plaintiffs' assertion that Supreme Court abused its discretion in failing to grantthem additional time with which to conduct discovery. Although the court had the discretion topermit further discovery if it found that "facts essential to justify opposition [to a motion forsummary judgment] may exist but cannot then be stated" (CPLR 3212 [f]; see Clochessy vGagnon, 58 AD3d 1008, 1010 [2009]), "the nonmoving party must produce some evidenceindicating that further discovery 'will yield material and relevant evidence' " (Fleischman v Peacock Water Co., Inc.,51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007][citation omitted]). "The 'mere hope' that evidence sufficient to defeat the motion may beuncovered during the discovery process is not enough" (Mazzaferro v Barterama Corp.,218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989];see Clochessy v Gagnon, 58 AD3d at 1010).
Here, plaintiffs requested an extension to obtain testimony from three contractors that hadworked on the house. However, plaintiffs fail to provide any specifics as to how these [*2]individuals could provide evidence material and relevant todefendants' alleged active concealment (see Zinter Handling, Inc. v Britton, 46 AD3d at1001). Further, it is undisputed that plaintiffs provided defendants with a list of contractors whoworked on the house prior to the 1999 closing; indeed, plaintiff admitted during his depositionthat he spoke with at least two of these individuals regarding repairs to the house (seeFlieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. vBritton, 46 AD3d at 1001). Under these circumstances, and given the fact that plaintiffsprovide no reasonable excuse for delaying their request for additional discovery for over twoyears following depositions and, indeed, nearly six years after commencing this action, we findno abuse of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61AD3d 1151, 1153 [2009]).
Cardona, P.J., Mercure, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.