Renkas v Sweers

[*1] Renkas v Sweers 2005 NY Slip Op 52247(U) [10 Misc 3d 1076(A)] Decided on November 7, 2005 Supreme Court, Monroe County Stander, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2005
Supreme Court, Monroe County

Daniel G. Renkas, JR. and ALYSSA J. RENKAS f/k/a ALYSSA J. HILLSON, Plaintiffs,

against

Edwin B. Sweers, Defendant.



2003/08882



APPEARANCES:

Attorney for Plaintiffs:Paul F. Iaconis, Esq.

Iaconis, Iaconis & Baum

282 Genesee Street

P.O. Box 250

Chittenango, New York 13037

Attorneys for Defendant:Ronald J. Passero, Esq., Co-counsel

26 Pleasant Street

Rochester, New York 14604

Alan L. Offen, Esq., Co-counsel

300 Linden Oaks, Suite 220

Rochester, New York 14625

Thomas A. Stander, J.

The Defendant, Edwin B. Sweers ("Sweers" or "Seller"), submits a motion seeking summary judgment dismissing the Complaint of the Plaintiffs, Daniel G. Renkas, Jr. and Alyssa J. Renkas, f/k/a Alyssa J. Hillson (collectively "Renkas" or "Buyers"); or in the alternative, granting summary [*2]judgment dismissing each of the causes of action in the complaint and dismissing Plaintiffs' application for damages relative to any health related injuries. Defendant-Seller's motion also requests an order directing Buyers to pay Seller's reasonable and necessary attorney fees and disbursements as a result of the necessity to defend this lawsuit.

The Buyers' Complaint sets forth the following causes of action: (a) the first cause of action for breach of contract; (b) the second cause of action for negligence; (c) the third cause of action for fraudulent misrepresentation; and (d) the fourth cause of action for punitive damages. The motion of the Defendant, Edwin B. Sweers, for summary judgment dismissing the complaint is GRANTED and the motion of Defendant seeking attorney fees and disbursements is DENIED.

I.FACTS

This action arises from the purchase and sale of residential real estate. Plaintiff-Buyers allege Defendant-Seller knew that significant water problems existed in the basement and misled the Buyers as to the true condition of the property. After the sale of the property the Plaintiff says they found puddling at various locations on the floor of the cellar which lasted for several weeks and made the basement unusable without significant remedial action.

The parties entered into a Purchase and Sale Contract on May 16, 2002 which contains the following standard clauses: 13. Condition of Property. Buyer agrees to purchase the property "AS IS" except as provided in paragraph 2, subject to reasonable use, wear, tear, and natural deterioration between now and the time of closing. However, this paragraph shall not relieve Seller from furnishing a Certificate of Occupany as called for in paragraph 11, if applicable. . . .19. Entire Contract. This contract when signed by both Buyer and Seller will be the record of the complete agreement between the Buyer and Seller concerning the purchase and sale of the property. No verbal agreements or promises will be binding.

The Purchase and Sale Contract also had a clause whereby addenda were attached: 21. Addenda. The following Addenda are incorporated into this contract: [X] All Parties Agreement . . .[X] Property Inspection . . . [X] Lead Compliance . . . [X] Other: desig agency, seller's disclosure, seller to pay for Septic Inspection satisfactory to buyers lender (emphasis supplied).

The Seller's Property Condition Disclosure Statement ("Disclosure Statement") referenced in the Contract is required by the Property Condition Disclosure Act (Real Property Law, Article 14, §462). The statute requires this executed disclosure statement to be attached to the real estate purchase contract (Real Property Law §462[1]). The language of the disclosure form is required by the statute and states, among other things: . . . This Disclosure Statement is not a warranty of any kind by the Seller or by any agent representing the Seller in this transaction. It is not a substitute for any inspections or tests and the buyer is encouraged to obtain his or her own independent professional inspections and environmental tests and also is encouraged to check public records pertaining to the property. . . .

(Real Property Law §462[2]). The Disclosure Statement requires the Seller to complete the form and answer the questions based upon actual knowledge.

II.MOTION FOR SUMMARY JUDGMENT

The Defendant, Edwin B. Sweers, the Seller, seeks summary judgment dismissing the causes of action set forth in the complaint on the basis that there are no triable issues of fact relative to any of the claims. The Plaintiff-Buyers' position is that the oral statements and representations of the Seller, together with the answers in the Property Condition Disclosure Statement, are sufficient to raise an issue of fact on Plaintiffs' claims.

On this summary judgment motion by the Seller, all the evidence is viewed in the light most favorable to the Buyers. The most favorable view of the facts for the Buyers is that the Seller made oral misrepresentations and misrepresentations in the Property Condition Disclosure Statement as to water in the basement of the property.

Viewing the evidence in the light most favorable to the Buyers means the Court begins its analysis with the assumption that the Seller made misrepresentations both orally and in the Disclosure Statement concerning a water problem in the basement.

A.FRAUDULENT MISREPRESENTATION

The Buyers assert a claim for fraudulent misrepresentation by the Seller in the third cause of action alleging that Seller had knowledge of the defective condition in the basement related to standing water and that Seller misled Buyers both orally and in the Property Condition Disclosure Statement. The Seller, on the other hand, requests summary judgment dismissing this cause of action for fraudulent misrepresentation on the grounds that this claim must be dismissed as a matter of law.

To prove a cause of action for fraudulent misrepresentation the Buyers must establish the following [*3]elements: (1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury (citations omitted).

(Jablonski v Rapalje, 14 AD3d 484 [2d Dept. 2005]; Gizzi v Hall, 300 AD2d 879 [3d Dept. 2002]). For purposes of this motion, the Court accepts the Buyers argument that there was a misrepresentation or omission by the Seller, and it was made for the purpose of inducing the Buyers to rely upon such misrepresentation. Thus, on this motion for summary judgment, the essential element at issue on Buyers' claims is whether there was justifiable reliance by the Buyers on the Seller's misrepresentation or material omission.

The Seller has the initial burden of demonstrating that he is entitled to summary judgment as a matter of law dismissing the fraudulent misrepresentation claim. Under the general legal doctrine in real estate transactions of caveat emptor or buyer beware, the seller has no duty to disclose any information concerning the property (Caceci v DiCanio Construction Corp., 72 NY2d 52,57 [1988]; Gizzi at 881). The fact that Seller offered to the Buyers oral information concerning watermarks on the basement wall and completed the Property Disclosure Statement, does not, in and of itself, create a fraudulent misrepresentation cause of action.

Here, the Seller shows summary judgment is warranted based upon the contractual language, the statutory provisions and the lack of any justifiable reliance on any alleged misrepresentations. The Seller has met his initial burden showing he is entitled to summary judgment dismissing the Buyers fraudulent misrepresentation claim.

Notwithstanding Sellers showing, the motion for summary judgment must be denied if the Buyers show facts sufficient to require a trial of any issue of fact. The Buyers assert that the Seller concealed the true condition of water in the basement by not disclosing all the facts regarding water on the basement floor when the condition of the basement was orally discussed, and by answering the Property Disclosure Statement incorrectly and contrary to Seller's actual knowledge. If a seller actively conceals a condition of the property, then an exception to the principle of caveat emptor may exist (Gizzi at 881). Active concealment is some conduct, more than mere silence, by the seller that may create a duty to disclose information concerning the property (Gizzi at 881; Bethka v Jensen, 250 AD2d 887,888 [3d Dept. 1998]). To recover damages for active concealment, "the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor" (Jablonski at 485).

In actions involving active concealment by a Seller of real property the New York Courts have said: [*4] It is well settled that in a contract for the sale of real property, if the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he [or she] must make use of those means, or he [or she] will not be heard to complain that he [or she] was induced to enter into the transaction by misrepresentations (citations omitted).

(McManus v Moise, 262 AD2d 370 [2d Dept. 1999][termite infestation]; see Mosca at 937[deeded lake rights]; Gizzi at 880-81[cedar siding]; Bennett v Citicorp Mtg, Inc., 8 AD3d 1050 [4th Dept. 2004][description and boundary]; Jablonski at 487[bat infestation]).[FN1]

Considering all the elements necessary for a fraudulent misrepresentation cause of action, the burden is on the Buyers to show an issue of fact exists as to whether Buyers justifiably or reasonably relied upon misrepresentations of the Seller. (see Bennett v Citicorp Mtg, Inc., 8 AD3d 1050 [4th Dept][property size]; Mosca v Kiner, 277 AD2d 937 [4th Dept. 2000][deeded lake rights and defects]).

Oral Representations

Taking the evidence in the light most favorable to the Buyers, the Buyers present testimony that prior to the purchase of the property there were discussions with the Seller about the water marks on the wall in the basement. The evidence shows that Seller advised the Buyers that the water marks were from an overflow of the wash machine, from sump pump failure and from the 1991 ice storm power outage. Buyers contend that they later learned from a neighbor that the neighbor had previously observed standing water on the floor of the basement on several occasions when there were "wet springs."

The Buyers' argue that they relied upon these oral representations of the Seller and that the evidence presents an issue of fact on justifiable reliance.

Representations in the Property Condition Disclosure Statement

Again taking the evidence in the light most favorable to Buyers, the Buyers also assert that the Seller intentionally and knowingly misled them by indicating on the Disclosure Statement that there was [*5]no seepage in the basement that results in standing water.[FN2] Buyers' assert that these representations were incorporated into the Purchase and Sale Contract and that such representations raise an issue of fact on justifiable reliance.[FN3]

Justifiable Reliance

Buyers contend that there is a question of fact as to whether they justifiably relied upon the representations made by the Seller. Justifiable reliance must be viewed under the accepted legal principles applied to real estate transactions. Those principles are that where the buyer has the means available of knowing, by the exercise of ordinary intelligence, the truth concerning the condition of the property and fails to make use of such means, "he will not be heard to complain that he was induced to enter into the purchase by misrepresentation" (Mosca at 938 [4th Dept. 2000]). Even where Buyers argue there was active concealment, there must be a showing that Buyers' "efforts to fulfill the responsibilities fixed by the doctrine of caveat emptor" were thwarted by the conduct of the Seller (Jablonski at 485).

Here, the conduct of the Seller did not thwart the ability of the Buyers to inspect, explore or investigate the condition of the property. Buyers knew that there were visible water marks on the wall in the basement. The Seller provided oral information concerning the water marks relating to a flood when the washer broke, the ice storm, and failure of the sump pump.[FN4] The Buyers hired an engineer to perform an inspection of the premises. The engineer report was inconclusive as to the basement indicating there was some water damage, but that the walls were blocked by stored items and paneling.[FN5] The Buyers did not pursue any further investigation to determine the condition of the basement. The Buyers exercised their contractual right to inspect the basement and had the [*6]option and opportunity to inspect, to move the furniture or stored items, and even to conduct a more thorough inspection.

In the Purchase and Sale Contract the Buyers specifically and unequivocally agreed to purchase the property in an "AS IS" condition, subject to inspections. The Buyers performed inspections of their choice and then decided to continue with their purchase of the property in its "AS IS" condition. The Seller's answers, whether oral or in the Property Condition Disclosure Statement, did not thwart the ability of the Buyer to assess and determine the condition of the property and did not alter the contract between the parties to purchase the property "AS IS".

In addition, the Property Condition Disclosure Act specifically states that this disclosure statement is not intended to prevent the parties from entering into an agreement for the sale of real property "AS IS" (Real Property Law §462[1]). The statute requires the Seller of residential real property to complete and sign the disclosure statement (Id.). Even accepting the argument that the Disclosure Statement is part of the terms of the purchase contract, this document unequivocally advises the Buyers that the disclosures are not a warranty and not a substitute for any inspections or tests (Real Property Law §462[2]). The statutory form encourages the Buyers to obtain independent professional inspections and the Buyers acknowledged in writing that the disclosure form is not a warranty or a substitution for inspections (Id.).[FN6]

The Disclosure Statement form, which explicitly states that the disclosures are not a warranty and buyers should conduct inspections, supports and reinforces the common law position of caveat emptor and the need to inspect and investigate real estate prior to purchase. The Disclosure Statement does not create a duty to disclose that supersedes the common law nor does the Property Condition Disclosure Act create a cause of action beyond the common law. The common law principle of caveat emptor, and the necessity of a showing of justifiable reliance for a claim of fraudulent misrepresentation in real estate purchase actions, remain the applicable law.

The Buyers have failed to show justifiable reliance on the oral misrepresentations or material omissions and failed to show justifiable reliance on the answers in the Property Disclosure Statement that may be wrongly answered. The evidence presented shows that the oral representations of Seller and the Sellers answers in the Property Disclosure Statement regarding the condition of the basement were not peculiarly within the Seller's knowledge and the Buyers' had the means available to ascertain the truth or the real quality of the representations. The Buyers conducted inspections and had available the means, by the exercise of ordinary intelligence, to discover the truth [*7]concerning the condition of the property. The Buyers cannot now complain that they were induced to enter into the purchase by oral misrepresentations or misrepresentations set forth in the Property Disclosure Statement. There is no question of fact on the justifiable reliance of Buyers because the Buyers inspected the property, knew of the water marks, had an engineer's inspection that was inconclusive, failed to investigate further, and went forward with the purchase of the property in its "AS IS" condition.

The Seller has demonstrated that he is entitled to summary judgment as a matter of law. The Buyers have failed to present evidence sufficient to raise an issue of fact requiring a trial on the cause of action alleging fraudulent misrepresentation. The motion of the Defendant-Seller for summary judgment dismissing the Plaintiff-Buyers fraudulent misrepresentation claim is GRANTED.

B.ACTION FOR BREACH OF CONTRACT

The Seller asserts that summary judgment dismissing the first cause of action for breach of contract is warranted because there is a failure on the part of the Buyers to establish any contractual relationship between the parties relative to providing real property other than as was provided for in the Purchase and Sale Contract between the parties. The parties agreed in the contract to purchase the property in an "AS IS" condition.

The Buyers assert that the Property Condition Disclosure Statement of the Seller was specifically incorporated as part of the Purchase and Sale Contract by the parties. Buyers conclude that the disclosures provided therein of the Seller are terms of the Purchase and Sale Contract.

Though the Buyers assert that each representation made in the Disclosure Statement became terms of the contract by the incorporation in the Purchase and Sale Contract, we note that the entire document is incorporated into the contract, not just the separate representations. The terms set forth by the Disclosure Statement include a statement that the disclosures are not warranties and that such disclosures are not a substitute for inspections and tests. The Disclosure Statement specifically informs the Buyers that such statement is "not a warranty of any kind by the seller." The Buyers signed the Disclosure Statement with an acknowledgment that it was not a warranty and not a substitute for inspections or testing of the property. In fact, Buyers had inspections and testing done on the property to their satisfaction.

Buyers entered into the Purchase and Sale Contract, incorporating the Disclosure Statement, and specifically agreeing to purchase the property "AS IS."[FN7] The incorporation of the Property [*8]Condition Disclosure Statement is consistent with and does not override or supersede the Purchase and Sale Contract terms to purchase the property "AS IS."

A term to purchase the property "AS IS" is a specific contract disclaimer as to the condition of the property to be purchased and thwarts this breach of contract claim (see Mosca v Kiner, 277 AD2d 937,939 [4th Dept. 2000]; McManus v Moise, 262 AD2d 370,371 [4th Dept. 1999]). The Buyers do not have a claim for breach of contract based on the representations made by the Seller in the Property Condition Disclosure Statement.[FN8]

Further, the Purchase and Sale Contract has a merger clause whereby the Buyers agreed that the complete agreement is in the contract and that no verbal agreements or promises are binding. The Buyers cannot rely on oral statements allegedly made by the Seller for its breach of contract claim.

The Seller has shown evidence sufficient to establish that as matter of law he is entitled to summary judgment on the cause of action asserting breach of contract. Buyers have failed to demonstrate a question of fact on the breach of contract claim. The motion of the Defendant-Seller for summary judgment dismissing the Plaintiff-Buyers first cause of action for breach of contract is GRANTED.

C. ACTION FOR NEGLIGENCE

The Buyers assert a cause of action for negligence. A claim for negligence requires a duty to another, a breach of that duty, and that the breach proximately caused injury to that person. Buyers assert in their Complaint that Seller negligently failed to disclose the defective condition in the premises cellar. The Seller seeks summary judgment dismissing this claim for negligence on the grounds that Buyers fail to set forth any facts showing where or how the Seller was negligent.

The evidence presented by the Seller shows that there was no duty to the Buyers to disclose the condition of the property. Under the generally accepted doctrine in real estate transaction of caveat emptor or buyer beware, there is no duty upon the seller to disclose any information concerning the property (Caceci v DiCanio Construction Corp., 72 NY2d 52,57 [1988]; Gizzi at 881). Further, there can be no duty created by oral representations of the Seller because the purchase and sale contract has an integration clause, which specifically states that the entire agreement is in the document and no verbal agreements are binding. The Seller has demonstrated evidence in support of his motion for Summary Judgement.

The Buyers must now demonstrate an issue of fact as to Seller's negligence. Buyers assert that [*9]Seller negligently failed to disclose the condition of the basement. As there is no duty to disclose under common law, Plaintiff must argue there is a duty under the Property Condition Disclosure Act for the Seller to accurately answer the disclosure statement and that there is a breach of that duty by providing incorrect answers in the disclosure statement (Real Property Law, Article 14, §462 [2]).

To determine if a cause of action not recognized in common law was created by the legislature, we look to the legislative history that is available. The Legislative findings for the Property Condition Disclosure Act make it clear that this statute "does not diminish the responsibility of buyers to carefully examine the property" and conduct inspections (Real Property Law, Article 14 Preamble, Legislative findings). The Act "does not limit existing responsibilities by a seller, buyer or agent concerning the condition of the property or potential liabilities or remedies at law, statute or in equity" (Id.). The statute also states that "[n]othing contained in this article shall be construed as limiting any existing legal cause of action or remedy at law, in statute or in equity" (Real Property Law §467). Together these statements demonstrate that the statutory provisions in Article 14 of the Real Property Law are not intended to change the common law. Further, the statute also does not create a cause of action. "Absent explicit legislative direction . . . it is for the courts to determine . . . what the Legislature intended" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314,325 [1983]).

The legislative findings and statutory language indicate that the Legislature intended for caveat emptor to remain the standard in real estate transaction and for existing causes of action and remedies to remain applicable. Specifically, the statute sets forth a duty to deliver a disclosure statement and a remedy for failure to deliver. "In the event a seller fails to perform the duty prescribed in [Article 14] to deliver a disclosure statement . . ." the buyer is entitled to a credit of $500 upon the transfer of title (Real Property Law §465[1]). The statute provides the explicit remedy of a $500 credit for any breach of the duty to deliver the property disclosure statement.

The Property Condition Disclosure Act also provides that "every seller of residential real property pursuant to a real estate purchase contract shall complete and sign a property condition disclosure statement . . ." (Real Property Law §462[1]). The statute addresses the situation when the disclosure statement is given to the Buyer. "Any seller who provides a property condition disclosure statement . . . shall be liable only for a willful failure to perform the requirements of this article (emphasis supplied)" (Id. §465[2]).

The legislative findings, the statutory language, and the existing common law and equitable remedies available in actions involving the transfer of real property, leads this Court to conclude that Article 14 of the Real Property Law was not intended to establish a new cause of action. There is no independent private cause of action by the Buyers against the Seller nor a basis for a negligence cause of action based upon Article 14, the Property Condition Disclosure Act.

The Buyers have failed to show any evidence or proof sufficient to establish an issue of fact on their claim for negligence. The Seller demonstrates that he is entitled to summary judgment as a matter of law. The motion of the Defendant-Seller for summary judgment dismissing the Plaintiff-Buyers [*10]second cause of action for negligence is GRANTED.

D.CAUSE OF ACTION FOR PUNITIVE DAMAGES

The Seller seeks summary judgment dismissing the fourth cause of action for punitive damages. The Seller asserts that there is no basis in law or fact for a claim of punitive damages relative to the facts and circumstances set forth in the pleadings and set forth in the parties' deposition testimony.

"There is no separate cause of action for punitive damages, inasmuch as punitive damages are but an incident of ordinary damages [citation omitted]" (Smith v County of Erie, 295 AD2d 1010 [4th Dept. 2002]). Further, to claim punitive damages incident to damages under another cause of action, the Buyers must demonstrate grounds for punitive damages. The generally accepted principle on a punitive damages claim is that "[p]unitive damages are awarded in tort actions where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime" (Prozeralik v Capital Cities Communications, Inc., 82 NY2d 466,479 [1993]). "Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice,' or fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton" (Prozeralik at 479 [citing Prosser and Keeton, Torts §2, at 9-10 [5th ed 1984]]).

The Buyers have failed to present any evidence sufficient to raise an issue of fact on the conduct of the Seller rising to the level of high moral culpability to support a claim for punitive damages (see Gizzi v Hall, 300 AD2d at 882). The motion of the Defendant-Seller for summary judgment dismissing any claims for punitive damages is GRANTED.

E.APPLICATION FOR DAMAGES RELATIVE TO HEALTH RELATED INJURIES.

The Seller requests an order dismissing Buyers' application for damages relative to any health related injuries on the grounds that the testimony of the Plaintiffs as set forth in the transcript of the oral deposition indicated no such damages occurred.

The Buyers submissions on this motion concede that no direct causal relationship between health problems and the conditions of the cellar have been established. Also Buyers admit that they have not obtained any medical confirmation of any relationship between health problems and water [*11]seepage in the basement.

The Plaintiff-Buyers have failed to present any evidence sufficient to raise a question of fact as to damages for health related injuries. The motion of the Defendant-Seller for summary judgment dismissing any claims for damages relative to health related injuries caused by the alleged condition of the basement is GRANTED.

F.ATTORNEY FEES AND DISBURSEMENTS

The Seller seeks an order directing Buyers to pay the Seller's reasonable and necessary attorney fees and disbursements as a result of this litigation. Seller asserts that he is entitled to such award based on the necessity of having to defend these frivolous causes of action brought by the Buyers. An award of attorneys fees is discretionary with the Court.

The application of the Defendant-Seller for attorney fees and disbursements is DENIED.

O R D E R

Based upon all the papers submitted in support and in opposition to this motion, upon the above Decision, and after due deliberation, it is hereby ORDERED that the motion of the Defendant, Edwin B. Sweers, for summary judgment dismissing the complaint of the Plaintiffs, Daniel G. Renkas, Jr. and Alyssa J. Renkas, is GRANTED; it is furtherORDERED that the motion of the Defendant, Edwin B. Sweers, for an order directing Plaintiffs' to pay his reasonable and necessary attorney fees and disbursements as a result of the necessity to defend this lawsuit is DENIED.

Dated:November___, 2005

Rochester, New York

__________________________________________

Thomas A. Stander

Supreme Court Justice C:\htformat\f5224760.txt Footnotes

Footnote 1:Generally New York courts review the particular facts presented on a case by case basis to determine whether summary judgment is warranted. In real estate transaction cases claiming justifiable reliance on misrepresentations, numerous New York courts have made determinations to grant summary judgment, finding no question of fact was raised (Bennett at 1051 [4th Dept. 2004]; Mosca at 938 [4th Dept. 2000]; McManus at 371).

Footnote 2: Seller answered questions related to his basement and water. In response to Question #30 Seller answered "NO" to the questions "Are there any flooding, drainage or grading problems that resulted in standing water on any portion of the property?" In response to Question #31 Seller answered "NO" as to whether the basement has seepage that results in standing water. Buyers also submit that Seller signed a certification required under the Property Condition Disclosure Act stating that all information contained in the disclosure statement "is true and complete to the seller's actual knowledge."

Footnote 3:Although not argued by the parties on this motion, the Seller asserts as an affirmative defense that no representations, warranties or promises in the purchase contract survived the closing as all terms of the contract merged into the deed upon transfer of title.

Footnote 4:Although Plaintiffs also claim that after the transfer of the property they contacted the Seller about the water in the basement and Seller indicated that such water puddling in the basement happens during "wet springs", this is irrelevant to a claim for fraudulent misrepresentation to induce purchase because it occurred after the transfter of title. Plaintiffs also allege that a neighbor was aware of water puddling in the basement while the Seller owned the property, again this information was provided after the purchase.

Footnote 5:The Buyers had an engineer inspection completed which indicated he was unable to inspect the basement walls and floors due to paneling and stored items. The inspection report noted "minor amt. of stains to some paneling."

Footnote 6:The buyer signs an acknowledgement which states: Buyer acknowledges receipt of a copy of this statement and buyer understands that this information is a statement of certain conditions and information concerning the property known to the seller. It is not a warranty of any kind by the seller or seller's agent and is not a substitute for any home, pest, radon or other inspections or testing of the property or inspection of the public records. The seller also certifies that the information is true and complete. (Real Property Law §462[2]).

Footnote 7:The Property Condition Disclosure Act allows real property to be sold "as is" under the contract: Nothing contained in this article or this disclosure statement is intended to prevent the parties to a contract of sale from entering into agreements of any kind or nature with respect to the physical condition of the property to be sold, including, but not limited to, agreement for the sale of real property "as is". (Real Property Law §462[1].)

Footnote 8:There does not appear to be any right and remedy under the terms of the Property Condition Disclosure Act for a breach of contract cause of action. (Real Property Law, Article 14; see Malach v Chuang, 194 Misc 2d 651 [J. Straniere, Richmond Cty, 2002).