Hansen v Burton

[*1] Hansen v Burton 2006 NY Slip Op 52468(U) [14 Misc 3d 1210(A)] Decided on December 21, 2006 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2006
Supreme Court, Richmond County

Paul Hansen & Lisa Hansen, Plaintiffs,

against

David Burton, Rossville Greens, LLC, a New York Limited Liability Company, Bloomingdale Greens, Inc., a New York Corporation, Brentwood Homes, LLC, a New York Limited Liability Company, Joseph Casavecchia, Joseph G. Casavecchia, Jr., John Does 1-4,000, John Does, Inc. 1-4,000, John Does LLC 1-4,000, and John Does, Corp. 1-4,000, Defendants.



101440/2006

Judith N. McMahon, J.

In May, 2006, the plaintiff commenced the instant action. The complaint sets forth that on January 28, 2002, the plaintiffs purchased a newly constructed home located at 14 Dexter Avenue, Staten Island, New York. The complaint further alleges that pipes running through their backyard from the defendant David Burton's adjacent backyard have leaked sewage onto their property for an extended period of time. The complaint also sets forth that defendants Rossville Greens sold the home to the plaintiffs and Bloomingdale Greens was the developer of the property. The complaint states that defendant Brentwood Homes, LLC was the contractor that built the house, and defendants Joseph Casavecchia and Joseph G. Casavecchia, Jr. were the owners of Brentwood.

The first through seventh causes of action sounding in negligence, trespass, and negligent infliction of emotional distress are asserted against defendant Burton. [*2]

The eighth through tenth causes of action sounding in fraud and negligent misrepresentation are asserted against Rossville Greens, Bloomingdale Greens, Brentwood and the Casavecchias. The complaint alleges that these defendants knew or should have known that the sewer pipes emptied raw sewage onto the plaintiff's property and that they had a duty to tell either the plaintiffs or the proper governmental authorities of the problem. Further, the complaint contends that the plaintiffs relied on these defendants' representations that the property was habitable.

Defendants Bloomingdale Greens, Brentwood Homes, Joseph Casavecchia and Joseph G. Casavecchia, Jr. (the movants) now move to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The movants also move to dismiss all cross-claims asserted against them.

It is well settled that a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) "must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002]; quoting, Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). "[T]he court must accept as true the facts alleged in the pleading and submission in opposition to the motion, and accord the plaintiff the benefit of every possible favorable inference" (Maldonado v. Olympia Mechanical Piping & Heating Corp., 8 AD3d 348 [2d Dept. 2004]; quoting, Kevin Spence & Sons, Inc. v. Boar's Head Provisions Co., 5 AD3d 352 [2d Dept. 2004]). Additionally, the court may consider any affidavits submitted by the plaintiff to remedy any defects in the complaint (see, Maldonado v. Olympia Mechanical Piping & Heating Corp., supra; Well v. Yeshiva Rambam, 300 AD2d 580 [2d Dept. 2002]).

In order to make out a prima facie case of fraud, the plaintiff must show that there has been misrepresentation of material facts, falsity, scienter, reliance and injury (see, Small v. Lorillard Tobacco Co, 94 NY2d 43, 56-57 [1999]; Standish-Parkin v. Lorillard Tobacco Co., 12 AD3d 301 [1st Dept. 2004]).

Although CPLR 3016(b) requires factual allegations in support of each element of fraud, to meet such requirement a plaintiff need only provide sufficient detail to inform defendants of the substance of the claims (see, Caprer v. Nussbaum, ___AD3d___, 2006 WL 2963128, 2006 NY Slip Op. 07443, pg. 16 [2d Dept. Oct. 17, 2006]; Kaufman v. Cohen, 307 AD2d 113, 120-121 [1st Dept. 2003]). Indeed, the pleading requirements of CPLR 3016(b) should not be interpreted so strictly as to require specificity where it may be impossible to state in detail the circumstances constituting the fraud (see, Lanzi v. Brooks, 43 NY2d 778, 780 [1977]; Jered Contr. Corp. v. New York City Trans. Auth., 22 NY2d 187, 194 [1968]). Such is certainly the case here, where defendants' dismissal motion prevented plaintiffs from obtaining discovery on the precise issues of defendants' knowledge and intent (see, Commerce & Industry Ins. Co. v. Globe Office Supply Co, Inc., 266 AD2d 165 [1st Dept. 1999]; Berkowitz v. Molod, 261 AD2d 128 [1st Dept. 1999]). Here, even without discovery, the complaint adequately alleges a misrepresentation or failure to disclose a material fact, falsity, scienter, justifiable reliance by plaintiff and damages (see, Kaufman v. Cohen, supra; Bernstein v. Kelso & Co., 231 AD2d 314, 321 [1st Dept. 1997]).

The elements of a cause of action sounding in negligent misrepresentation include: (1) an [*3]awareness by the maker that the statement is to be used for a particular purpose, (2) reliance by a known party on the statement in furtherance of that purpose, and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance (see, Securities Investor Protection Corp. v. BDO Seidman, 95 NY2d 702, 711 [2001]; Parrott v. Coopers & Lybrand, 95 NY2d 479, 484[2000]). While the plaintiff's allegedly unreasonable reliance on the movants' fraudulent misrepresentations would, if proven, constitute a defense to this cause of action, it does nothing to impair the complaint (see, Auguston v. Spry, 282 AD2d 489 [2d Dept. 2001]; Delane Check Cashing Corp. v. Katz, 127 AD2d 735 [2d Dept. 1987]).

Accordingly, it is

ORDERED, that the defendants Bloomingdale Greens, Brentwood Homes, Joseph Casavecchia and Joseph G. Casavecchia, Jr's motion to dismiss the complaint as asserted against them and to dismiss all cross-claims asserted against them is denied; and it is further,

ORDERED that the parties are directed to appear for a Preliminary Conference on January 17, 2007, at 9:30 a.m.

E N T E R,

Dated: December 21, 2006

J.S.C.