GOULD v. SYRACUSA (1998)

 Plaintiff commenced this action seeking to recover damages for defendants' alleged breach of contract and fraud in connection with plaintiff's purchase of a single-family residence from defendants.   Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint.   Defendants failed to meet their initial burden of establishing as a matter of law that they did not breach the warranties in the contract of sale that the septic system was “in good working order” (see, Joseph v. Creek & Pines, 217 A.D.2d 534, 535, 629 N.Y.S.2d 75, lv. dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773, lv. denied 89 N.Y.2d 804, 653 N.Y.S.2d 543, 676 N.E.2d 72) and that the property was “in full compliance with * * * all building ordinances” (see, Davis v. Weg, 104 A.D.2d 617, 619, 479 N.Y.S.2d 553;  Moral Six Corp. v. Margold Assocs. Co., 79 A.D.2d 702, 434 N.Y.S.2d 266).   In addition, defendants submitted no proof that they fulfilled their contractual obligation to complete the vinyl siding prior to closing.

 Defendants further failed to demonstrate their entitlement to judgment dismissing the fraud cause of action.   Contrary to defendants' contention, plaintiff does not rely upon defendants' mere silence to support that cause of action (cf., Melia v. Riina, 204 A.D.2d 955, 956, 612 N.Y.S.2d 506, lv. dismissed 85 N.Y.2d 857, 624 N.Y.S.2d 375, 648 N.E.2d 795;  London v. Courduff, 141 A.D.2d 803, 804, 529 N.Y.S.2d 874, lv. dismissed 73 N.Y.2d 809, 537 N.Y.S.2d 494, 534 N.E.2d 332).   Rather, plaintiff alleges that defendants knowingly and affirmatively misrepresented the condition of the septic system with the intent to deceive him (see, Pappas v. Harrow Stores, 140 A.D.2d 501, 504, 528 N.Y.S.2d 404).   Plaintiff further alleges that defendants actively concealed the defects of the septic system and thwarted his ability to discover its true condition by draining the system prior to his inspection (see, Tahini Invs. v. Bobrowsky, 99 A.D.2d 489, 470 N.Y.S.2d 431;  see also, Striker v. Graham Pest Control Co., 179 A.D.2d 984, 985, 578 N.Y.S.2d 719, lv. dismissed 79 N.Y.2d 1040, 584 N.Y.S.2d 449, 594 N.E.2d 943).   Thus, the evidence submitted by defendants in support of the motion fails to show that the fraud cause of action has no merit (see, CPLR 3212 [b] ).

Order unanimously affirmed with costs.

MEMORANDUM: