| Mikulski v Battaglia |
| 2013 NY Slip Op 08742 [112 AD3d 1355] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| John F. Mikulski, Respondent, v Russell M. Battaglia,Appellant. |
—[*1] Amigone, Sanchez & Mattrey, LLP, Buffalo (Richard S. Juda, Jr., of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.),entered May 30, 2012. The order, among other things, denied the cross motion ofdefendant for summary judgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for fraudulentinducement and fraudulent misrepresentation, arising from his purchase of a home fromdefendant. Defendant appeals from an order that, inter alia, denied his cross motion forsummary judgment dismissing the amended complaint. We note at the outset thatdefendant's contention that he was entitled to dismissal of the amended complaintpursuant to CPLR 3211 (a) (11) was raised for the first time in his reply papers inSupreme Court. "The function of reply papers is to address arguments made inopposition to the position taken by the movant and not to permit the movant to introducenew arguments in support of, or new grounds for the motion" (Dannasch vBifulco, 184 AD2d 415, 417 [1992]). Thus, defendant's contention was not properlybefore the court (see Zolfaghariv Hughes Network Sys., LLC, 99 AD3d 1234, 1235 [2012], lv denied20 NY3d 861 [2013]
Even assuming, arguendo, that defendant met his initial burden on that part of thecross motion with respect to the fraudulent concealment cause of action by submittingevidence that he did not knowingly fail to disclose any defects in the property (see generally Sample v Yokel,94 AD3d 1413, 1415 [2012]), we conclude that plaintiff raised a triable issue of factin opposition (see generallyJablonski v Rapalje, 14 AD3d 484, 485-486 [2005]).
We reject defendant's contention that the court erred in denying that part of the crossmotion with respect to the fraud cause of action on the ground that it fails to meet therequirements of CPLR 3016 (b). The statute "requires only that the misconductcomplained of be set forth in sufficient detail to clearly inform a defendant with respectto the incidents complained of" (Lanzi v Brooks, 43 NY2d 778, 780 [1977],mot to amend remittitur granted 43 NY2d 947 [1977], rearg denied 44NY2d 733 [1978]; seeMandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]), and thatstandard was met here. Furthermore, we agree with plaintiff that the court otherwiseproperly denied that part of defendant's cross motion for summary judgment dismissingthe fraud [*2]cause of action on the merits. It is wellsettled that, "[t]o establish a cause of action for fraud, plaintiff must demonstrate thatdefendant[ ] knowingly misrepresented a material fact upon which plaintiff justifiablyrelied and which caused plaintiff to sustain damages" (Klafehn v Morrison, 75 AD3d808, 810 [2010]). False representation in a property condition disclosure statementmandated by Real Property Law § 462 (2) "may constitute active concealment inthe context of fraudulent nondisclosure . . . , [but] to maintain such a causeof action, 'the buyer must show, in effect, that the seller thwarted the buyer's efforts tofulfill the buyer's responsibilities fixed by the doctrine of caveat emptor' "(Klafehn, 75 AD3d at 810). Here, although defendant met his initial burden onthat part of the cross motion with respect to the fraud cause of action by submittingevidence that he did not knowingly fail to disclose any defects in the property (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), plaintiffraised a triable issue of fact (see generally id.). Present—Scudder, P.J.,Smith, Peradotto, Lindley and Sconiers, JJ.