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Jacob Bass and Barbra Bass v. Joseph Orlando and Linda Orlando

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 21, 2011

JACOB BASS AND BARBRA BASS,
RESPONDENTS,
v.
JOSEPH ORLANDO AND LINDA ORLANDO,
APPELLANTS.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated January 29, 2010.

Bass v Orlando

Decided on December 21, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ

The order, insofar as appealed from, denied the branches of defendants' motion seeking summary judgment dismissing the first four causes of action of the complaint.

ORDERED that the order, insofar as appealed from, is modified, by providing that the branches of defendants' motion seeking summary judgment dismissing the third and fourth causes of action of the complaint are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action for breach of contract and fraud, the record indicates that the parties entered into a written contract whereby defendants agreed to sell their home to plaintiffs. The contract specifically provided that "the roof and basement [of the premises] is free of leaks, at the time of closing or delivery of possession, if later than closing" and that "[t]his provision does not survive delivery of the deed [or] delivery of possession, if later than closing." The contract also specified that defendants had the right to remain in the premises for a period not to exceed five days after the closing of title and that when defendants vacated the premises the roof would be free of leaks. Plaintiffs alleged in their complaint that when they took possession of the premises it was not free of leaks and that defendants had misrepresented that they would remedy the leakage condition. Defendants moved for summary judgment dismissing the complaint and plaintiffs opposed the motion. Insofar as is relevant to this appeal, the District Court denied the branches of defendants' motion seeking summary judgment dismissing plaintiffs' first four causes of action alleging either breach of contract or fraud.

Generally, the obligations and provisions of a contract for the sale of land are merged in the deed and, as a result, are extinguished upon the closing of title (see Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113 [2008]; Davis v Weg, 104 AD2d 617 [1984]). However, this rule does not apply where there is a clear intent evidenced by the parties that a particular provision shall survive delivery of the deed, or where there exists a collateral undertaking (see Novelty Crystal Corp., 49 AD3d at 115; Dourountoudakis v Alesi, 271 AD2d 640 [2000]; 527 Smith St. Brooklyn Corp. v Bayside Fuel Oil Depot Corp., 262 AD2d 278 [1999]; Goldsmith v Knapp, 223 AD2d 671 [1996]; Davis, 104 AD2d at 619). Here, defendants represented, and the contract specifically provided, that the roof would be free of leaks after the closing of title. Thus, under the circumstances, since defendants remained in possession of the premises after the closing of title, there remains a triable issue of fact as to whether the premises was delivered to plaintiffs with a roof that was free of leaks. Accordingly, we leave undisturbed so much of the order, insofar as appealed from, as denied the branches of defendants' motion seeking summary judgment dismissing the first and second causes of action.

To recover damages for fraudulent misrepresentation, a plaintiff must prove a misrepresentation or an omission of a material fact which was false and known to be false by defendant, made for the purpose of inducing plaintiff to rely upon it, justifiable reliance of plaintiff on the misrepresentation or material omission, and injury (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Jablonski v Rapalje, 14 AD3d 484, 487 [2005]). Here, plaintiffs were unable to demonstrate that defendants had made certain representations or omitted certain material facts with respect to the condition of the roof and basement which they knew were false in order to induce plaintiffs to enter into the contract.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendants' motion seeking summary judgment dismissing the third and fourth causes of action of the complaint are granted.

Molia, J.P., Tanenbaum and LaCava, JJ., concur.

Decision Date: December 21, 2011

20111221

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