SHORT FORM ORDER SUPREME COURT -STATE OF NEW YORK PRESENT: HON. BRUCE D. ALPERT Justice TRIAL/lAS, P ART 4

Transcription

1 SlAN SHORT FORM ORDER SUPREME COURT -STATE OF NEW YORK PRESENT: HON. BRUCE D. ALPERT Justice TRIAL/lAS, P ART 4 SCOTT GRODSKY and CHRISTINE GRODSKY Plaintiffs Motion Sequence No. Index No. 198/04 Motion Date: October 25, against- GWO SHYONG TZENG and SUSAN TZENG Defendants. The following papers read on this motion for summary judgment: Notice of Motion Opposing Papers Reply Papers Upon the foregoing papers it is ordered that this motion by defendants Gwo Shyong Tzeng and Susan Tzeng for an Order pursuant to CPLR 3212 dismissing the complaint against them is granted. In this action, the plaintiffs seek to recover for damages to their propert located at 17 W oodhill Lane in Upper Brookville, New York. They purchased that

2 property from the defendants in 2003 for 1.7 million dollars. The written contract of sale was entered into in January of2003, and the closing took place on August, That day, the parties entered into a Possession Agreement which extended the sellers ' right to remain at the premises for one week. As and for their first cause of action, the plaintiffs allege that when they ultimately got possession of the premises, they discovered defects, damages and operational problems of which they were not aware at the time of closing. They allege that the defendants actively and intentionally concealed these defects and in doing so, deceived them. As and for their second cause of action, the plaintiffs allege that after the sellers delivered the premises to them, they discovered that numerous items had been damaged by the defendants in the process of moving out. As and for their third cause of action, the plaintiffs seek an award of counsel fees to which they contend they are contractually entitled. The contract of sale contained an "as is" clause, as follows: Condition of Property. Purchaser acknowledges and represents that Purchaser is fully aware of the physical condition and state of repair of the premises and of all other property included in this sale, based on Purchaser s own inspection and investigation thereof, and that the Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any information, data, statements or representation, written or oral, as to the physical condition, state of repair, use, cost of operation, or any other matter related to the Premises or the other

3 property included in the sale, given or made by Seller or its representatives, and shall accept the same "as is" in their present condition and state of repair, subject to reasonable use, wear, tear and natural deterioration between the date hereof and the date of Closing...without any reduction in the purchase price or claim of any kind for any change in such condition by reason thereof subsequent to the date of this contract. Purchaser and its authorized representative shall have the right at reasonable times and upon reasonable notice...to Seller to inspect the Premises before Closing. Their contract also contained the following merger clause: All prior understandings, agreements, representations and warranties oral or written, between Seller and Purchaser are merged in this contract; it completely expresses their full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this contract The sellers ' right to possession of the premises following the closing of title was specifically addressed in the Rider to the contract. They were specifically afforded the right to remain in possession for seven days following the closing of title, provided that they deposited $ in escrow with their attorney. In the event that the sellers did not vacate the premises within that time, the sellers attorney was authorized to pay the purchasers $200 per day for use and occupancy. The purchasers were specifically afforded 30 days to notify the sellers ' attorney of any claim against the escrow monies, and if an agreement could not be reached the Rider provided that the "Purchaser shall have sixty (60) days from the date of giving of possession to commence an action... " At closing, the parties entered

4 into a Possession Agreement specifically granting the sellers the right to remain at the premises for one week. In seeking dismissal of the first cause of action, the defendants rely on both the "as is" and merger provisions of the underlying contract. They attest that the plaintiffs elected not to have an engineer inspect the property though afforded the opportnity to do so, and that the plaintiffs inspected the propert several times themselves. They acknowledge that when the plaintiffs asked them about water stains on the ceiling, they told them that the roof had leaked and was repaired. The defendants maintain that they did not conceal anything from the plaintiffs that could not have been readily discovered by them through an inspection. In opposition, the plaintiffs maintain that after moving in, they found concealed water damage, black mold and rot in and about the bathroom windows and a skylight obscured by putty, wood moldings and paint; a bucket to catch dripping water hidden in the rafters of the ceiling; water leaks in the roof that had been concealed by paint and caulk; water stains on the ceilings; damages to the sink in the hallway bathroom concealed by a wire hanger holding the sink together and covered by caulk; a main hot water line leak hidden by a clamp; damaged granite and marble tiles which were damaged after the contract was signed; rot on windows concealed by caulk, wood trim, moldings and paint; and, water rot of structural columns which had been concealed by putty, caulk and paint.

5 New York adheres to the doctrine of caveat emptor and imposes no duty on the seller to disclose any information concerning the premises when the parties deal at arm s length, unless there is some conduct on the part of the seller which constitutes active concealment." (Platzman v Morris, 283 AD2d 561, 562) To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the plaintiffs must show, in effect, that the sellers thwarted the plaintiffs' efforts to fulfill their responsibilities fixed by the doctrine of caveat emptor. " (Platzman v Morris, supra). Here, there is no evidence that the plaintiffs made any effort to have the property inspected, despite the fact that they questioned the ceiling s condition and were made aware of the roofs history of leaking. Moreover, the roofs condition was not peculiarly within the sellers' knowledge. (see, Platzman v Morris, supra at p. 562, citing Glazer v LoPreste, 278 AD2d 198; McManus v Moise, 262 AD2d 370) To the extent that the plaintiff purchasers advance a claim for fraudulent concealment, it fails. (see, Platzman v Morris, supra; see also, Kay v Pollak, 305 AD2d 637) Furthermore the contract contained a provision that the plaintiffs were fully aware of the condition of the premises based upon their own inspection and investigation, and not based on any information or representations, written or oral made by the sellers..." (Platzman v Morris, supra at p ) Thus, the

6 plaintiffs may not advance a claim for fraud, either. (see, Platzman v Morrs supra) Accordingly, the first cause of action is dismissed. The second cause of action concerns the damages allegedly caused by the defendants in the process of moving, i.e., damaged sprinkler heads and driveway lights. While the Possession Agreement clearly required the sellers to (r Jemain responsible and be obligated for correcting any damages and making all repairs the defendants maintain that the governing sixty (60) day limitations' period set forth in the contract' s Rider expired long before this action was commenced. Based thereon, the defendants contend that dismissal of this claim is required. In response thereto, the plaintiffs maintain that the Possession Agreement which did not contain any limitation on the time in which an action must be commenced, constituted a novation. A novation requires a valid obligation; an agreement by the parties to a new contract; the extinguishment of the old contract; and, a valid new contract. (see Callanan Industries, Inc. v Micheli Contracting Corp., 124 AD2d 960(3rd Dept.)) Here, there was no novation. In fact, the Possession Agreement expressly provides "(TJhat the premises shall be delivered to the Purchasers on the date of possession in the same condition, normal wear and tear excepted as provided for in the contract of sale between the parties hereto. which provisions of the contract

7 ,..,;., ;, ' ''' y,.."""'... ;, and this agreement shall survive delivery of the deed until date of actual delivery of possession. " (emphasis supplied) The sixty (60) day limit in which an action was required to be commenced for post-closing damages is not inconsistent with the Possession Agreement. This contractual provision clearly survived the Possession Agreement and applies herein. The second cause of action by which the plaintiffs seek to recover such damages is untimely and is, accordingly, dismissed. In view of the foregoing, there are no grounds for an award of counsel fees and the third cause of action is dismissed, as well. Pursuant to CPLR 8106 and 8202, motion costs in the sum of $ are imposed against the plaintiffs and awarded to the defendants. The defendants ' counterclaims are severed and continued, and counsel for the respective parties are directed to appear for a Preliminary Conference before the DCM staff (lower level) on December at 2' DATED: November ENTERED NOV CO' t.ms AU COUNTY OJ 'n.", \i*: C\\"" -1., "i,,. ''' ij ICF