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Millet v. Kamen

Supreme Court, Nassau County

May 31, 2018

Kelley Millet and ERIKA MILLET, Plaintiffs,
v.
Jeffrey L. Kamen and TERRY MORABITO, Defendants.

          Matthews, Kirst, & Cooley, PLLC Attorneys for the Plaintiffs

          Michael F. Schwartz Attorney for the Defendant

          HON. RANDY SUE MARBER, J.S.C.

         Papers Submitted:

Notice of Motion x
Memorandum of Law x
Affirmation in Opposition x
Reply Affirmation x
Sur-Reply Affirmation x
Sur-Sur Reply Affirmation x

         Upon the foregoing papers, the motion by the Defendants, pursuant to CPLR § 3211 (a) (7) and (a) (1), seeking dismissal of the newly added claims in the Plaintiffs' amended complaint, is determined as hereinafter provided.

         This action arises out of the construction and sale to the Plaintiffs of a new single-family residence located at 62 Hoaglands Lane, Old Brookville, New York (the "Premises"). On October 20, 2014, the Plaintiffs and the Defendant, JEFFREY L. KAMEN ("Kamen"), entered into a Residential Contract of Sale, which provides that Kamen would convey the Premises, with all buildings and improvements thereon, to the Plaintiffs for the purchase price of $2, 887, 500.00 ("Contract") [ See Residential Contract of Sale, annexed to Defendants' Motion as Exhibit "B"]. While Kamen is a licensed architect, the Contract defines Kamen as the "Seller" of the Premises. The Plaintiffs seek to recover for various defects discovered after taking possession of the Premises. The gravamen of the parties' dispute concerns a "Single Family Home Limited Warranty" (the "Limited Warranty") annexed to the Contract.

         The Limited Warranty, made exclusively by Kamen, replaced all other warranties, specifically providing as follows:

THIS LIMITED WARRANTY IS IN LIEU OF AND REPLACES ALL OTHER WARRANTIES ON THE CONSTRUCTION AND SALE OF THE HOME, THE BUILDINGS AND ITS COMPONENTS, BOTH EXPRESS AND IMPLIED (INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE HEREOF. THE PURPOSE OF THIS LIMITED WARRANTY IS TO IDENTIFY THE SELLER'S RESPONSIBILITIES FOR CONSTRUCTION DEFECTS OF A LATENT OR HIDDEN NATURE THAT COULD NOT HAVE BEEN FOUND OR DISCLOSED ON FINAL INSPECTION OF THE HOME.

         [ See Limited Warranty, Exhibit "B" at p. 10]. For obvious or patent defects or any unfinished work, the Limited Warranty provided the Plaintiffs an opportunity to conduct a final inspection of the Premises with Kamen prior to their acceptance of the deed [ Id. at p. 10 at ΒΆ3]. All defects and unfinished items were to ...


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