Delano v USA Home Inspection Servs.

[*1] Delano v USA Home Inspection Servs. 2007 NY Slip Op 51076(U) [15 Misc 3d 142(A)] Decided on May 24, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1063 S C.

Laurie Delano and Christopher Delano, Respondents,

against

USA Home Inspection Services, Defendant, Michael Umbreit and Donna Umbreit, Appellants, -and- William Whelan, Esq., Defendant.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), entered December 12, 2005. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiffs the principal sum of $2,200 against defendants Michael Umbreit and Donna Umbreit (see 10 Misc 3d 1054[A], 2005 NY Slip Op 51959[U]).

Judgment, insofar as appealed from, affirmed without costs.

Prior to entering into a contract to purchase appellants' one-family house, plaintiffs engaged a home inspection service, defendant USA Home Inspection Services (USA), to inspect the premises and issue a report. Following its inspection, USA noted in its report that the heating system was in working order. Sometime after the closing, plaintiffs discovered that the vents in the two bedrooms on the upstairs level were not connected to the heating system. Following said discovery, plaintiffs instituted this small claims action based in part on fraud to recover the cost of installing heating ducts from the boiler to the vents. After trial, the court awarded plaintiffs the sum of $2,200 as against defendants Michael Umbreit and Donna Umbreit. The instant appeal by said defendants ensued. [*2]

Generally, the seller of real property is under no duty to speak when the parties deal at arm's length (cf. Real Property Law art 14). The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud (see Moser v Spizzirro, 31 AD2d 537 [1968], affd 25 NY2d 941 [1969]; Perin v Mardine Realty Co., 5 AD2d 685 [1957], affd 6 NY2d 920 [1959]). The buyer has the duty to satisfy himself as to the quality of his bargain pursuant to the doctrine of caveat emptor, which in New York still applies to real estate
transactions (Glazer v LoPreste, 278 AD2d 198 [2000]; London v Courduff, 141 AD2d 803 [1988], appeal dismissed 73 NY2d 809 [1988]).

However, the doctrine of caveat emptor has been held not to apply in instances where a party has been found to engage in active concealment (see 17 E. 80th Realty Corp. v 68th Assoc., 173 AD2d 245 [1991] [dummy ventilation system constructed by seller]; Haberman v Greenspan, 82 Misc 2d 263 [1975] [foundation cracks covered by seller]). Here, the undisputed non-hearsay evidence established that the walls in the rooms in issue were finished and painted, and the floors carpeted. Register vents were placed in the walls so as to give the impression that heat was being provided to the rooms. In addition, the rooms were arranged as bedrooms, which would be expected to be heated. Based on the foregoing undisputed facts, the record was sufficient to establish that defendants actively concealed the lack of connecting ducts to provide heat (cf. Christiano v Chiarenza, 1 AD3d 1039 [2003]).

Defendants' contention that the action was barred by the Property Condition Disclosure Act (Real Property Law art 14) is without merit. Section 467 of the Real Property Law provides that nothing contained in article 14 shall be construed as limiting any existing legal cause of action or remedy at law which precludes the buyer's claim for common law fraud in the inducement.

Based on the foregoing, we find that substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1807).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: May 24, 2007