| Margolin v IM Kapco, Inc. |
| 2011 NY Slip Op 07815 [89 AD3d 690] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Sheilah Margolin, Appellant, v IM Kapco, Inc., DoingBusiness as Housemaster, et al., Defendants, and Dorothy Stelzner,Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Patrick D. Geraghtyand Debra A. Adler of counsel), for respondent.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from a judgment ofthe Supreme Court, Nassau County (Parga, J.), entered May 10, 2010, which, upon an order ofthe same court dated March 19, 2010, granting that branch of the motion of the defendantDorothy Stelzner which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar asasserted against her, is in favor of the defendant Dorothy Stelzner and against the plaintiff,dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, that branch of the motion of thedefendant Dorothy Stelzner which was pursuant to CPLR 3211 (a) (1) to dismiss the complaintinsofar as asserted against her is denied, the order dated March 19, 2010, is modifiedaccordingly, and the complaint is reinstated insofar as asserted against the defendant DorothyStelzner.
The plaintiff purchased a house in Nassau County from the defendant Dorothy Stelzner(hereinafter the seller). The plaintiff alleges that, after moving into the house, she discovered thatthe skylights had been leaking and had caused extensive damage to the home, requiring costlyrepairs. The plaintiff brought this action against, among others, the seller. As to the seller, thecomplaint asserted a cause of action alleging fraud, averring that the seller fraudulentlyrepresented that there were no leaks in the house, and that she actively concealed the defects inthe premises. The seller moved pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss thecomplaint insofar as asserted against her. The Supreme Court granted that branch of the motionwhich was pursuant to CPLR 3211 (a) (1), and judgment was entered accordingly. We reverse.
As the plaintiff correctly contends, the seller waived her right to move pursuant to CPLR3211 (a) (1) to dismiss the complaint based upon documentary evidence, because this defensewas not raised in her answer and the motion was not made before the answer was due(see CPLR 3211 [e]; WellsFargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241 [2007]).[*2]
The seller argues, as an alternative ground for affirmance(see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]),that the branch of her motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against her should have been granted. This contention is without merit. "NewYork adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing todisclose information regarding the premises when the parties deal at arm's length, unless there issome conduct on the part of the seller which constitutes active concealment" (Simone v Homecheck Real Estate Servs.,Inc., 42 AD3d 518, 520 [2007]; see Laxer v Edelman, 75 AD3d 584, 585 [2010]; Daly v Kochanowicz, 67 AD3d78, 87 [2009]; Platzman v Morris, 283 AD2d 561, 562 [2001]; cf. RealProperty Law §§ 462, 465). A plaintiff seeking to recover damages for activeconcealment must show that the defendant "thwarted" the plaintiff's efforts to fulfill his or herresponsibilities imposed by the doctrine of caveat emptor (Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership, 12 NY3d236, 245 [2009] [internal quotation marks omitted]; see Rozen v 7 Calf Cr., LLC, 52 AD3d 590, 593 [2008]; Matos v Crimmins, 40 AD3d1053, 1055 [2007]; Jablonski vRapalje, 14 AD3d 484, 485 [2005]).
On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR3211 (a) (7), the pleading is to be liberally construed, accepting all of the facts alleged in thecomplaint to be true, and according the plaintiff the benefit of every possible favorable inference(see Leon v Martinez, 84 NY2d 83, 87 [1994]; Jacobs v Macy's E., 262 AD2d607, 608 [1999]). Here, the evidentiary facts averred by the plaintiff, including those in heraffidavit submitted in opposition to the motion to dismiss (cf. Cron v Hargro Fabrics, 91NY2d 362, 366 [1998]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]; Kennedy v H. Bruce Fischer, Esq.,P.C., 78 AD3d 1016, 1018 [2010]), were sufficient to make out a cause of actionalleging fraud (see Eurycleia Partners,LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Ross v Louise Wise Servs., Inc., 8NY3d 478, 488 [2007]). The plaintiff alleged that in addition to denying the existence of any"water problems," the seller took several steps to hide the existence of the leaks, includingplacing "large commercial-size aluminum roasting pans" above the drop ceiling tiles to collectwater from the ongoing leaks. The facts alleged, if proved, may constitute active concealment(cf. 17 E. 80th Realty Corp. v 68th Assoc., 173 AD2d 245, 246 [1991]; London vCourduff, 141 AD2d 803, 804 [1988]).
To the extent the seller argues, as an alternative ground for affirmance (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d at 545), that the branch of her motion whichwas pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against hershould have been granted, that contention is without merit (see Zane v Minion, 63 AD3d 1151 [2009]). Mastro, J.P., Eng,Belen and Hall, JJ., concur.