Stollsteimer v Kohler

[*1] Stollsteimer v Kohler 2009 NY Slip Op 50941(U) [23 Misc 3d 1125(A)] Decided on May 5, 2009 Supreme Court, Rensselaer County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2009
Supreme Court, Rensselaer County

Thomas J. Stollsteimer, Plaintiff,

against

William G. Kohler and Evelyn E. Kohler, Defendants.



222284



Robert W. Linville, Esq.

Attorney For Plaintiff

1251 Route 13

Old Chatham, New York 12136

Mandel Clemente, P.C.

Attorneys For Defendants

Linda A. Mandel Clemente, Esq., of counsel

120 DeFreest Drive

Rensselaer Technology Park

North Greenbush, New York 12180

Henry F. Zwack, J.

In this real estate contract dispute, defendants renew their motion for summary judgment. Plaintiff opposes the motion.

The Court notes that defendants' initial motion for summary judgment was denied on February 23, 2009, without prejudice to renewal, because defendants failed to annex pleadings to their motion.

Defendants now move to renew and have annexed the pleadings to their motion, which was returnable on April 22, 2009. Defendants argue that based upon the facts set forth in the moving affidavits, summary judgment should be granted to defendants. Specifically, defendants argue that plaintiff was provided with a survey map of the property to be purchased by plaintiff and that the boundary lines of the property were not only known to defendants.

Plaintiff opposes the motion. First, plaintiff argues that the motion is untimely and is returnable within less than 60 days prior to the trial date, which is prohibited by a prior order of this Court.The trial date in this case is May 18, 2009, and the motion was returnable April 22, 2009, which plaintiff notes is 26 days before the trial. The Court's prior order had specified that dispositive motions could not be made returnable less than 60 days before the trial date. Plaintiff also argues that defendants' counsel unduly delayed filing the present motion after the prior motion was denied and she was served with such decision on March 6, 2009.

Regarding the merits of the summary judgment motion, plaintiff argues that defendants' memorandum of law, if submitted on the prior motion and considered by the Court, contains argument inappropriate for a memorandum of law. Additionally, plaintiff argues that there are questions of fact which must be determined at trial, specifically whether Rob Kohler acted as an agent of defendants and whether plaintiff was induced to buy the subject property through fraud or misrepresentation.

In reply, defendants contend that the Court should exercise its discretion to permit the present motion, despite its proximity to the trial, under the facts of this case. Counsel notes that the original memorandum of law could not be located and that the motion was delayed while she attempted to obtain a copy from opposing counsel. Defendants' counsel also notes that the present motion is a renewal of the previously timely filed and returnable summary judgment motion of defendants.

The Court will permit consideration of the present motion, notwithstanding its proximity to the trial date, in light of the facts of this case. The Court has weighed heavily the fact that defendants' summary judgment motion was initially filed and was returnable in a timely manner. Additionally, defendants' counsel has set forth justification for the delay in filing the present motion to renew and the Court notes that circumstances involving law office failure in a small law office have been found to constitute good cause for delay (see Stimson v E.M. Cahill Co., Inc., 8 AD3d 1004 [4th Dept 2004]). The Court has also considered that the infirmity with the prior motion involved the failure to attach pleadings and that the present motion is renewing the prior summary judgment [*2]motion on the same papers. The purpose of the Court's order which states the general rule that dispositive motions are not to be returnable closer than 60 days prior to the trial date is to permit the Court sufficient time to decide motions. While this is the general rule, it is not without the possibility for an exception, which the Court finds is appropriate based upon all the facts and circumstances of this case.

The Court grants defendants' motion to renew based upon the submission of the pleadings which were omitted from the prior summary judgment motion (Wider v Heller, 24 AD3d 433 [2d Dept 2005]; Welch v Hauck, 18 AD3d 1096 [3d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]). However, the Court did not have a record of defendants' memorandum of law, dated November 22, 2008, ever being filed. Therefore, the memorandum of law has not been considered.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).

Plaintiff's complaint sets forth three causes of action, for breach of contract, fraud and unjust enrichment. Plaintiff alleges that he believed he was purchasing a parcel of real property from defendants which was to include a certain four acre parcel, based upon representations by defendants' son as to boundary lines. Prior to the closing, defendants' son provided plaintiff with a survey map, which undisputedly correctly identified the property to be sold. After the closing, the complaint alleges that plaintiff learned that the certain four acre parcel was not within the parcel of property that he had purchased. Plaintiff's complaint seeks damages in the amount of $45,000, which plaintiff contends was the separately negotiated price for the subject 4 acres.

Defendants move for summary judgment, asserting that despite any representations, the boundary lines were not solely within the knowledge of defendants and the complaint should be dismissed as a matter of law on this basis. Defendants' son provides an affidavit, in which he acknowledges that he mistakenly pointed out the boundary line to plaintiff, which he avers he only discovered after the closing when [*3]plaintiff approached him and they together used a measuring wheel to determine the correct boundary line. Defendant William Kohler also provides an affidavit in which he avers that despite some preliminary discussion of he and his wife retaining three or four acres of land, this never in fact occurred and plaintiff purchased the entire parcel of 51.7 acres, as depicted in the survey of defendants which was provided to plaintiff. Defendant William Kohler affirms that he was unaware of his son's apparent mistaken boundary line reference to plaintiff. Defendant William Kohler also avers that defendants did not interfere with plaintiff's ability to have his own survey done and that plaintiff never asked defendants themselves about the boundary lines. He also states that he offered to rescind the sale when plaintiff complained regarding the boundary line and plaintiff refused that offer.

The Court notes that when the Contract for Purchase and Sale, dated April 23, 2007, was signed, both parties to the contract had attorneys. The contract reflects that the property to be sold totals 51.7 acres. The contract at paragraph 10, under the subheading "Conditions Affecting Title," states in relevant part as follows: "The Seller shall convey and the Purchaser shall accept the property . . . subject to . . . any state of facts which an inspection and/or survey may show, provided that nothing in this paragraph renders the title to the property unmarketable." The contract at paragraph 24, under the subheading "Entire Agreement," states in relevant part as follows: This contract contains all agreements of the parties hereto. There are no promises, agreements, terms, conditions, warranties, representations or statements other than contained herein. This agreement shall apply to and bind the heirs, legal representatives, successors and assigns of the respective parties. It may not be changed orally.

The Court finds that defendants have set forth prima facie entitlement to judgment as a matter of law. It is well established that "[t]he doctrine of caveat emptor requires that a buyer act prudently to assess the fitness and value of his purchase and operates to bar the purchaser who fails to exercise due care from seeking the equitable remedy of rescission" (Stambovsky v Ackley, 169 AD2d 254, 258 [1st Dept 1991]). The general rule was enunciated by this court over a half a century ago in Schumaker v Mather, 133 NY 590, 596, 30 NE 755, 757, that "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 must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations. (citations omitted)."

(Danann Realty Corp. v Harris, 5 NY2d 317, 322 [1959]; see Micche v Homes By The Timbers, Inc., 1 AD3d 326 [2d Dept 2003]; Kay v Pollak, 305 AD2d 637 [2d Dept 2003]; [*4]O'Dell v Ginsberg, 253 AD2d 544 [2d Dept 1998]; DiFilippo v Hidden Ponds Associates, 146 AD2d 737 [2d Dept 1989]). Specifically with regard to the determination of boundary lines, courts have held that such issues are not peculiarly with the knowledge of the seller (see, e.g., Marsh v Hasbrouck, 37 AD3d 1010, 1011 [3d Dept 2007]; Eisenthal v Wittlock, 198 AD2d 395, 396 [2d Dept 1993]; Kurtz v Nicolo, 125 AD2d 993 [4th Dept 1986]).

The Court finds that the determination of the boundary lines of the subject property in this case was not peculiarly within the knowledge of defendants (see id.). Therefore, notwithstanding that defendants' son may have erroneously indicated what the boundary lines were, plaintiff could have determined the true boundary lines. Plaintiff was apparently in possession of an accurate survey, which he was apparently provided by defendants themselves. But even without considering that fact, plaintiff was able to obtain his own survey if he deemed it necessary to establish the boundary lines. It is undisputed that defendants transferred to plaintiff the entire 51.7 acres as depicted in their survey. The main issue however is that the disputed boundary line was capable of being determined by plaintiff. Therefore, defendants have established prima facie entitlement to summary judgment as a matter of law (Danann Realty Corp., 5 NY2d at 322; Marsh, 37 AD3d at 1011; Micche, 1 AD3d 326; Kay, 305 AD2d 637; O'Dell, 253 AD2d 544; Eisenthal, 198 AD2d at 396; DiFilippo, 146 AD2d 737; Kurtz, 125 AD2d 993). This conclusion is further supported by the language of the contract in this case, which indicated that the sale was subject to anything a survey would provide and that the contract constituted the entire agreement between the parties (see, e.g., Eisenthal, 198 AD2d at 396).

In opposition to defendants' motion for summary judgment, plaintiff submits an affidavit and avers that the boundary lines of the land at issue were pointed out by both defendants' son and by defendant William Kohler himself. Plaintiff does not reference the survey he was apparently provided according to defendants. Plaintiff's father also submits an affidavit and avers that conversations regarding boundary lines, and specifically the disputed easterly corner of the subject property, were discussed in the presence of defendant William Kohler.

The Court finds that plaintiff has failed to raise a triable issue of material fact to warrant a trial in this case. Even if one of the defendants erroneously indicated a boundary line to plaintiff, this does not raise a triable issue of fact because the boundary lines were capable of independent determination by plaintiff. The questions of whether defendants' son acted as agent of defendants and if defendants purposefully pointed out erroneous boundary lines are not triable questions of fact under the circumstances. The Court also notes plaintiff's reliance upon Snyder v Potter, 134 AD2d 664 (3d Dept 1987), but finds that case distinguishable from the facts of the present case, as similarly noted in Marsh v Hasbrouck, 37 AD3d 1010 (3d Dept 2007). The facts set forth in the parties' affidavits on this motion make clear that it is undisputed that plaintiff was in fact [*5]transferred the entire parcel depicted in defendants' survey and constituting 51.7 acres as the sale contract correctly reflected. Whether defendants misrepresented the boundary lines does not raise a question of material fact because this was an issue capable of determination by plaintiff and was not a matter peculiarly within the knowledge of defendants (see Danann Realty Corp., 5 NY2d at 322; Marsh, 37 AD3d at 1011; Micche, 1 AD3d 326; Kay, 305 AD2d 637; O'Dell, 253 AD2d 544; Eisenthal, 198 AD2d at 396; DiFilippo, 146 AD2d 737; Kurtz, 125 AD2d 993).

For all the foregoing reasons, the Court finds that defendants set forth prima facie entitlement to summary judgment and that plaintiff failed to raise a triable issue of fact.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted; and it is further

ORDERED, that plaintiff's complaint is dismissed.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for the plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:May, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice