SCIALDONE v. MAJKA

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Supreme Court, Appellate Division, Fourth Department, New York.

Matthew SCIALDONE and Deanna Scialdone, Plaintiffs-Respondents, v. Sigmund MAJKA and Marcella Majka, Defendants-Appellants.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., SCUDDER, GORSKI, CENTRA, AND GREEN, JJ. Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of Counsel), for Defendants-Appellants. Mark A. Wolber, Utica, for Plaintiffs-Respondents.

Plaintiffs commenced this action against defendants, the developers of the subdivision containing plaintiffs' home, seeking to recover for damages caused by the flooding of their basement.   Supreme Court properly denied defendants' motion to dismiss the complaint.   Contrary to the contentions of defendants, we conclude that the complaint, read together with the affidavit and sworn letters submitted in opposition to the motion, makes out a cause of action for fraud (see generally Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970;  Gibraltar Steel Corp. v. Gibraltar Metal Processing, 19 A.D.3d 1141, 1142, 796 N.Y.S.2d 814).   Plaintiffs have sufficiently alleged “a misrepresentation or material omission by defendant[s], on which [they] relied, that induced plaintiff[s] to purchase the [property]” (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763).   We reject defendants' contention that the alleged breach of contract cause of action accrued in 1994, when work on the sanitary and storm drainage lines for plaintiffs' property was finished.   Because plaintiffs did not enter into a contract with defendants until October 2002, there could have been no breach of that contract in 1994 (see Kleinschmidt Div. of SCM Corp. v. Futuronics Corp., 41 N.Y.2d 972, 973, 395 N.Y.S.2d 151, 363 N.E.2d 701).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: