BENNETT v. Audrey Edelman & Associates, Defendant-Appellant. (2004)

Supreme Court erred in denying the motion of defendant Audrey Edelman & Associates (Edelman) seeking summary judgment dismissing the complaint and cross claims against it.   This action arises from the purchase of real estate by plaintiffs from defendant Citicorp Mortgage, Inc. (Citicorp) in a transaction in which Edelman was the listing agent and defendant Commonfund Mortgage Corporation was the mortgagee.   Plaintiffs commenced this action after discovering that the deed conveyed fewer acres than they expected.   Plaintiffs seek damages from Edelman for fraud and negligent misrepresentation based on alleged misrepresentations by Edelman that Citicorp had 15 acres to sell and that all 15 acres were included in the purchase.

We agree with Edelman's contention that any reliance by plaintiffs upon those alleged misrepresentations was not justified or reasonable.   Citicorp's ownership of only five acres was a matter of public record, readily ascertainable from the abstract of title provided to plaintiffs' attorney for her review prior to the closing. Indeed, the deed accurately sets forth the description and boundaries of the property.   Plaintiffs “had the means available to [them] of knowing, by the exercise of ordinary intelligence, the truth concerning the description and boundar[ies] of the land ․ [and, because they] failed to make use of such means, [they] will not be heard to complain that [they were] induced to enter into the purchase by misrepresentation” (Kurz v. Nicolo, 125 A.D.2d 993, 993, 510 N.Y.S.2d 390;  see Mosca v. Kiner, 277 A.D.2d 937, 938, 716 N.Y.S.2d 543;  Parkway Woods v. Petco Enters., 201 A.D.2d 713, 608 N.Y.S.2d 314).   We reject the contention of plaintiffs that they are not charged with notice of the discrepanciesthat their attorney failed to disclose to them (see Otsego Aviation Serv. v. Glens Falls Ins. Co., 277 App.Div. 612, 618, 102 N.Y.S.2d 344).   We therefore grant the motion of Edelman and dismiss the complaint and cross claims against it.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint and cross claims against defendant Audrey Edelman & Associates are dismissed.

MEMORANDUM: