VENEZIA v. COLDWELL BANKER SAMMIS REALTY

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

Denise M. VENEZIA, et al., respondents, v. COLDWELL BANKER SAMMIS REALTY, et al., appellants, et al., defendant.

Decided: March 27, 2000

WILLIAM C. THOMPSON, J.P., SONDRA MILLER, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Klein & Vizzi, LLP, West Babylon, N.Y. (John J. Vizzi of counsel), for appellants Thomas L. Repetti and Judith Repetti. Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineola, N.Y. (Andrew E. Curto of counsel), for appellant Coldwell Banker Sammis Realty (no brief filed). Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of counsel), for respondents.

In an action, inter alia, to recover damages for fraud, the defendants Thomas L. Repetti and Judith Repetti appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Dunn, J.), dated December 14, 1998, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them, and the defendant Coldwell Banker Sammis Realty separately appeals from the same order.

ORDERED that the appeal by the defendant Coldwell Banker Sammis Realty is dismissed as withdrawn pursuant to a letter dated July 9, 1999;  and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendants Thomas L. Repetti and Judith Repetti, on the law, the cross motion is granted, the complaint is dismissed insofar as asserted against those defendants, and the action against the remaining defendants is severed;  and it is further,

ORDERED that the defendants Thomas L. Repetti and Judith Repetti are awarded one bill of costs payable by the plaintiffs.

The plaintiffs (hereinafter the buyers) entered into a contract to buy the home of the defendants Thomas L. Repetti and Judith Repetti (hereinafter the sellers).   A salesperson of one of the defendant real estate agencies represented to the buyers that the house was in good condition.   The sellers, however, never made any representations to the buyers about the condition of the premises.   After title was closed and the buyers occupied the house, they were informed of a meeting concerning a class action lawsuit with respect to toxic contamination of the untapped groundwater beneath their land and the surrounding area.   Indeed, the defendant Thomas L. Repetti himself was a plaintiff in a class action lawsuit against the polluter.   The buyers commenced this action against the sellers and the real estate agencies, inter alia, to recover damages for fraud.   The Supreme Court denied the sellers' cross motion for summary judgment dismissing the complaint insofar as asserted against them, holding that their motion was premature.   We now reverse.

 Because the parties inserted a specific merger clause into a rider of their contract which declared that the buyers had inspected the premises, agreed to accept it “as is”, and understood that no representations were made as to its condition, the buyers' claim of fraud against the sellers was extinguished upon closing (see, Cohan v. Sicular, 214 A.D.2d 637, 625 N.Y.S.2d 278).

 In any event, the buyers did not allege that the sellers made any misrepresentations about the condition of the land's subsurface or groundwater (cf., Smith v. Fitzsimmons, 180 A.D.2d 177, 584 N.Y.S.2d 692 [misrepresentations relating to latent defects were made] ).   The buyers also did not allege that the sellers engaged in concealment or otherwise deceitful conduct designed to prevent the discovery of the contamination.   Hence, the sellers were under no duty to speak, and their silence about the contamination is not actionable as a fraud (see, Industrial Risk Insurers v. Ernst, 224 A.D.2d 389, 638 N.Y.S.2d 109).   Accordingly, the buyers have failed to make out a legally cognizable claim of fraud or misrepresentation against the sellers (see, Gouldsbury v. Dan's Supreme Supermarket, 154 A.D.2d 509, 546 N.Y.S.2d 379).

 The buyers also failed to demonstrate how further discovery might yield material facts which would warrant the denial of summary judgment (see, e.g., Castrol, Inc. v. Parm Trading Co. of N.Y.C., 228 A.D.2d 633, 645 N.Y.S.2d 825).   Since there is no indication that further discovery would have aided the buyers, the buyers' opposition to the cross motion on this ground was unpersuasive, and the mere submission of the affirmation of an attorney without personal knowledge of the facts was inadequate to defeat the cross motion (see, Matter of O'Hara, 85 A.D.2d 669, 445 N.Y.S.2d 201).

MEMORANDUM BY THE COURT.

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