| Sample v Yokel |
| 2012 NY Slip Op 02971 [94 AD3d 1413] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| Martin Sample et al., Appellants, v Ellen Yokel,Respondent. |
—[*1] Hiscock & Barclay, LLP, Rochester (Gary H. Abelson of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County(Matthew A. Rosenbaum, J.), entered April 21, 2011. The order and judgment granted the motionof defendant for summary judgment dismissing the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiffs, who purchased a home from defendant, commenced this actionseeking compensatory and punitive damages for negligence, the alleged failure to perform therequirements of Real Property Law § 465 (2) in conjunction with the sale of residentialreal estate (hereafter, property), fraud, restitution and implied indemnification. Plaintiffs appealfrom an order and judgment granting defendant's motion for summary judgment dismissing thecomplaint, and we affirm. We note at the outset that plaintiffs conceded before the motion courtthat they had no viable cause of action for the alleged failure to perform the requirements of RealProperty Law § 465 (2) (seegenerally Cacheiro v Middletown Enlarged City School Dist., 29 AD3d 846, 846[2006]), and they do not address the implied indemnification cause of action on appeal and thusare deemed to have abandoned any issue with respect to it (see Ciesinski v Town ofAurora, 202 AD2d 984, 984 [1994]).
We further note at the outset that we agree with plaintiffs that Supreme Court erred indiscrediting the affidavit of their expert. "[O]pinion evidence must be based on facts in the recordor personally known to the witness" (Hambsch v New York City Tr. Auth., 63 NY2d723, 725 [1984] [internal quotation marks omitted]) and, although plaintiffs' expert did notpersonally inspect some of the property defects at issue, his limited familiarity with the propertygoes "to the weight of his . . . opinion as evidence, not its admissibility" (Matter of State of New York v Blair,87 AD3d 1327, 1328 [2011] [internal quotation marks omitted]). Nevertheless, the error isof no moment inasmuch as the expert addressed the construction of the deck, which was not atissue, and he did not address the relevant issue whether defendant concealed informationconcerning the condition of the deck.[*2]
We conclude that the court properly granted that part ofthe motion with respect to the cause of action for negligence, in which plaintiffs alleged thatdefendant was negligent in failing, inter alia, to provide an accurate disclosure of property defectsin the Property Condition Disclosure Statement. "It is well settled that '[a] claim for negligentmisrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special orprivity-like relationship imposing a duty on the defendant to impart correct information to theplaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information'" (Mandarin Trading Ltd. vWildenstein, 16 NY3d 173, 180 [2011], quoting J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007],rearg denied 8 NY3d 939 [2007]). Even assuming, arguendo, that defendant had therequisite relationship with plaintiffs that required her to disclose correct information to plaintiffsconcerning the property (see Meyers vRosen, 69 AD3d 1095, 1096 [2010]), we conclude that defendant met her initial burdenon that part of the motion by submitting evidence that the information imparted to plaintiffs wascorrect and that, in opposition thereto, plaintiffs failed to raise a triable issue of fact (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Turning now to the fraud cause of action, it is well settled that, "[t]o establish a cause ofaction for fraud, plaintiff[s] must demonstrate that defendant[ ] knowingly misrepresented amaterial fact upon which plaintiff[s] justifiably relied and which caused plaintiff[s] to sustaindamages" (Klafehn v Morrison, 75AD3d 808, 810 [2010]). "Although New York traditionally adheres to the doctrine of caveatemptor in an arm's length real property transfer . . . , Real Property Law article 14codifies a seller's disclosure obligations for certain residential real property transfers"(id.), including this residential real property transaction (see § 461 [5]).False representation in a property condition disclosure statement mandated by Real Property Law§ 462 (2) "may constitute active concealment in the context of fraudulent nondisclosure. . . , [but] to maintain such a cause of action, 'the buyer[s] must show, in effect, thatthe seller thwarted the buyer[s'] efforts to fulfill the buyer[s'] responsibilities fixed by thedoctrine of caveat emptor' " (Klafehn, 75 AD3d at 810). Here, defendant met her initialburden on that part of the motion with respect to the fraud cause of action by submitting evidencethat she did not knowingly fail to disclose any defects in the property, and in opposition plaintiffsfailed to raise a material issue of fact (see generally Zuckerman, 49 NY2d at 562).
We further conclude that the court properly granted that part of the motion with respect to therestitution cause of action. " '[T]he essential inquiry in any [cause of] action for . . .restitution is whether it is against equity and good conscience to permit the defendant to retainwhat is sought to be recovered' " (Sperryv Crompton Corp., 8 NY3d 204, 216 [2007], quoting Paramount Film Distrib. Corp.v State of New York, 30 NY2d 415, 421 [1972], remittitur amended 31 NY2d 678[1972], rearg denied 31 NY2d 709 [1972], cert denied 414 US 829 [1973]). Here,defendant met her initial burden by establishing that she was not enriched through negligence orfraud in conjunction with the sale of the property to plaintiffs, and plaintiffs failed to raise atriable issue of fact (see Zuckerman, 49 NY2d at 562; cf. Abacus Fed. Sav. Bank v Lim, 75 AD3d 472, 474-475 [2010]).
Finally, we conclude that the court properly dismissed the claim for punitive damages."Punitive damages are permitted when the defendant's wrongdoing is not simply intentional butevince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as toimply a criminal indifference to civil obligations . . . The misconduct must beexceptional, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness thatbetokens an improper motive or vindictiveness . . . or has engaged in outrageous oroppressive intentional misconduct or with reckless or wanton disregard of safety or rights" (Ross v Louise Wise Servs., Inc., 8NY3d 478, 489 [2007] [internal quotation marks omitted]). Here, there was no misconducton the part of defendant and, even assuming, arguendo, that she engaged in wrongdoing, weconclude that this is not an "exceptional" case in which punitive damages are warranted(id.). Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.