Johnson v Levin

Johnson v Levin 2018 NY Slip Op 06855 Decided on October 16, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 16, 2018
Renwick, J.P., Tom, Gesmer, Singh, JJ.
7333 157660/15 595766/15

[*1]Wade Johnson, et al., Plaintiffs-Appellants,

v

Joel Levin, et al., Defendants, 1150 Fifth Avenue Owners Corp., Defendant-Respondent. [And a Third-Party Action]

Kasowitz Benson Torres LLP, New York (Jessica T. Rosenberg of counsel), for appellants.

Braverman Greenspun, P.C., New York (Jonathan Kolbrener of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 16, 2017, which, to the extent appealed from, granted defendant 1150 Fifth Avenue Owners Corp.'s motion to dismiss the cause of action for fraudulent or negligent misrepresentation as against it, unanimously affirmed, without costs.

The allegations that defendant coop induced plaintiffs to enter into a purchase agreement through misrepresentations and omissions concealing dangerous defects in the subject unit fail to state a cause of action, because a cooperative does not owe a fiduciary duty to purchasers of units with respect to conduct that occurred before the purchase (see Woods v 126 Riverside Dr. Corp., 64 AD3d 422, 423 [1st Dept 2009], lv denied 14 NY3d 704 [2010]). Moreover, the complaint alleges that plaintiffs were aware that the unit had undergone significant renovations two years earlier, and yet they failed to inspect the renovations or inquire as to whether any issues had occurred with respect to the renovations (see id.). The special facts doctrine is not applicable as plaintiffs knew about the renovations and could have, but chose not to, inquire about them (see Jana L. v West 129th St. Realty Corp., 22 AD3d 274, 278 [1st Dept 2005]).

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 16, 2018

CLERK