| Felix v Thomas R. Stachecki Gen. Contr., LLC |
| 2013 NY Slip Op 03966 [107 AD3d 664] |
| June 5, 2013 |
| Appellate Division, Second Department |
| David Felix et al., Respondents, v Thomas R.Stachecki General Contracting, LLC, et al., Defendants, and Robin A. Blackley et al.,Appellants. |
—[*1] Goggins & Palumbo, Mattituck, N.Y. (William C. Goggins of counsel), forrespondents.
In an action, inter alia, to recover damages for violations of the ResidentialLead-Based Paint Hazard Reduction Act of 1992 (42 USC § 4851 et seq.),the defendants Robin A. Blackley and Corcoran Group, Inc., appeal (1), as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr.,J.), dated October 25, 2011, as denied, as untimely, their motion pursuant to CPLR 3211(a) (7) to dismiss the complaint insofar as asserted against them and granted that branchof the plaintiffs' cross motion which was pursuant to CPLR 3215 for leave to enter ajudgment against them upon their default in appearing or answering the complaint, (2)from an order of the same court dated April 2, 2012, which denied their motion for leaveto renew and reargue their motion pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against them and for leave to reargue their opposition tothat branch of the plaintiffs' cross motion which was pursuant to CPLR 3215 for leave toenter a default judgment against them, and (3) from an order of the same court datedAugust 15, 2012, which denied their motion pursuant to CPLR 5015 to vacate so muchof the order dated October 25, 2011, as granted that branch of the plaintiffs' cross motionwhich was pursuant to CPLR 3215 for leave to enter a default judgment against them.
Ordered that the appeals from the orders dated April 2, 2012, and August 15, 2012,are dismissed; and it is further,
Ordered that the order dated October 25, 2011, is reversed insofar as appealed from,on the law and in the exercise of discretion, the motion of the defendants Robin A.Blackley and Corcoran Group, Inc., pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against them is granted, and that branch of the plaintiffs'cross motion which was pursuant to CPLR 3215 for leave to enter a judgment against thedefendants Robin A. Blackley and Corcoran Group, Inc., upon their default in appearingor answering the complaint is denied; and it is further,
Ordered that one bill of costs is awarded to the defendants Robin A. Blackley and[*2]Corcoran Group, Inc.
The plaintiffs commenced this action against Robin A. Blackley and CorcoranGroup, Inc. (hereinafter together the Corcoran defendants), among others, to recoverdamages for violations of the Residential Lead-Based Paint Hazard Reduction Act of1992 (42 USC § 4851 et seq. [hereinafter the RLPHRA]; see Brown v Maple3, LLC, 88AD3d 224, 230-231 [2011]). The complaint alleged, among other things, that theCorcoran defendants violated the RLPHRA when they failed to make certain disclosuresregarding the dangers of lead paint while acting as the plaintiffs' broker in connectionwith a transaction in which the plaintiffs purchased certain real property. The Corcorandefendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against them for failure to state a cause of action. The plaintiffs, inter alia,cross-moved pursuant to CPLR 3215 for leave to enter a default judgment against theCorcoran defendants. In an order dated October 25, 2011, the Supreme Court, amongother things, denied the Corcoran defendants' motion as untimely and granted that branchof the plaintiffs' cross motion which was for leave to enter a default judgment against theCorcoran defendants.
The Corcoran defendants thereafter moved for leave to renew and reargue theirmotion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst them and for leave to reargue their opposition to that branch of the plaintiffs'cross motion which was pursuant to CPLR 3215 for leave to enter a default judgmentagainst them. That motion was denied in an order dated April 2, 2012. The Corcorandefendants then moved pursuant to CPLR 5015 to vacate so much of the order datedOctober 25, 2011, as granted that branch of the plaintiffs' cross motion which waspursuant to CPLR 3215 for leave to enter a default judgment against them. That motionwas denied in an order dated August 15, 2012.
Although the Corcoran defendants may have defaulted in appearing or answering,they nevertheless set forth a reasonable excuse for the default and made a showing of apotentially meritorious defense (cf. McGee v Dunn, 75 AD3d 624, 624-625 [2010]). Underthe circumstances of this case, the Supreme Court improvidently exercised its discretionin refusing to excuse the Corcoran defendants' default and consider their motion todismiss the complaint on its merits (see CPLR 2004; Lolly v Brookdale Hosp. Med.Ctr., 37 AD3d 428, 428 [2007]; Livigni v City of New York, 160 AD2d684, 685 [1990]), and the court erred in granting that branch of the plaintiffs' crossmotion which was pursuant to CPLR 3215 for leave to enter a judgment against themupon their default in appearing or answering the complaint (see Matter of Csaszar v County ofDutchess, 95 AD3d 1009, 1011 [2012]; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649,651 [2011]; McGee v Dunn, 75 AD3d at 624-625; Venturella-Ferretti v Ferretti,74 AD3d 792, 793 [2010]; Green v Dolphy Constr. Co., 187 AD2d 635, 636[1992]; Cree v Cree, 124 AD2d 538, 541 [1986]).
On the merits, the Corcoran defendants' motion to dismiss the complaint insofar asasserted against them should have been granted. "On a motion to dismiss the complaintpursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must affordthe pleading a liberal construction, accept all facts as alleged in the pleading to be true,accord the plaintiff the benefit of every possible inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty,LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d83, 87 [1994]). "However, bare legal conclusions are not presumed to be true" (Khan v MMCA Lease, Ltd.,100 AD3d 833, 833 [2012]; see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d1020, 1021 [2007]).
Here, the complaint, even as amplified by the affidavit of the plaintiff Claire Felix,failed to state a cause of action against the Corcoran defendants to recover damages forviolation of the RLPHRA (seegenerally Muro-Light v Farley, 95 AD3d 846, 846-847 [2012]; Morad v Morad, 27 AD3d626, 627 [2006]). The statutory language of the RLPHRA "is unambiguous withregard to the liability of real estate agents; only seller's agents are liable" for the failure toensure compliance with its provisions (Keegan v Downing Agency, Inc., 2003WL 21210326, *2, 2003 US Dist LEXIS 8618, *7 [D Me 2003]; see 42 USC§ 4852d [a] [4]). Contrary to the plaintiffs' contention, it would be contrary to theunambiguous language of the statute to construe 24 CFR 35.86 so as to impose a duty onan agent or representative of a buyer (see 42 USC § 4852d [a]; Keeganv Downing Agency, Inc., 2003 [*3]WL 21210326,2003 US Dist LEXIS 8618 [2003]; Flowers v ERA Unique Real Estate, Inc., 170F Supp 2d 840, 843 [ND Ill 2001]; Griffin v Bruner, 341 Ill App 3d 321, 326,793 NE2d 974, 978 [2003]). Accordingly, the Supreme Court should have granted theCorcoran defendants' motion to dismiss the complaint insofar as asserted against them.
The appeal from so much of the order dated April 2, 2012, as denied that branch ofthe motion of the Corcoran defendants which was for leave to reargue must be dismissed,as no appeal lies from an order denying reargument. The appeal from the order datedAugust 15, 2012, and the appeal from so much of the order dated April 2, 2012, asdenied that branch of the Corcoran defendants' motion which was for leave to renewmust be dismissed as academic in light of our determination on the appeal from the orderdated October 25, 2011 (seeCarmody v Bald, 102 AD3d 904 [2013]). Skelos, J.P., Angiolillo, Roman andMiller, JJ., concur.