Raizen v Robbins

[*1] Raizen v Robbins 2006 NY Slip Op 50237(U) [11 Misc 3d 1056(A)] Decided on February 16, 2006 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2006
Supreme Court, Westchester County

David Raizen, Plaintiff,

against

John Robbins, STEVEN ROBBINS, MARY BURR, R.R. RAGETTE, INC., d/b/a PRUDENTIAL RAGETTE REALTORS and FAWN FUEL OIL, INC. d/b/a FAWN HEATING, Defendants.



6739/04



Rafferty & Redlisky

Attys. For Defts. Robbins

2975 Westchester Avenue, Suite 207

Purchase, New York 10577

Underweiser & Underweiser

Attys. For Pltf.

One Water Street - 2nd fl.

White Plains, New York 10601

Penino & Moynihan

Attys. for Deft. R.R. Ragette

180 East Post Road - Suite 300

White Plains, New York 10601

Law Offices of David Stone & Associates

Attys. For Deft. Fawn Fuel

72 East Main Street

New Rochelle, New York 10801

Mary H. Smith, J.

The following papers numbered 1 to 33[FN1] were read on this motion by defendants Robbins for summary judgment dismissing the complaint and cross-claims, etc., and on this cross-motion by plaintiff for an Order pursuant to CPLR 3126, etc.

Papers Numbered

Notice of Motion - Affidavit (J. Robbins, S. Robbins) - [*2]Affirmation (Rafferty) - Exhs. (A-Q) .................. 1-5

Notice of Cross-Motion - Affirmation Underweiser) -

Affidavits (Raizen, Fawn, Jentilucci, Houst, Sastow,

Posillico, Abbattista) - Exhs. (A-K) ...................7-16

Answering Affirmation (Falsch) ........................ 18

Answering Affirmation (Rafferty) - Affidavit (J. Robbins,

S.Robbins) - Exhs. (A-M) ............................ 19-22

Replying Affirmation (Rafferty) - Affidavit (J. Robbins,

S.Robbins) - Exhs. (A-N) ............................ 23-26

Replying Affirmation (Rafferty) ...................... 28

Replying Affirmation (Underweiser) - Affidavit (Raizen)

- Affirmation (Sastow) - Exhs. (L-R) ............... 29-32

Memoranda of Law .......................................6,17,

22a,27,33

Upon the foregoing papers, it is Ordered and adjudged that these motions are disposed of as follows:

This is an action arising out of plaintiff's purchase from defendants Robbins, brothers, of a single family house in Scarsdale, New York. Defendants Robbins had entered into an Exclusive Right to Sell Agreement with defendant R.R. Ragette, Inc. ("Ragette") in October, 2003, with defendant Burr acting as their agent. Following an open house, plaintiff made an offer to purchase the subject premises which, after some negotiations, was accepted by defendants Robbins in the amount of $630,000. Prior to executing the contract of sale, plaintiff insisted on a home inspection, which was performed by non-party Housemaster, October 13, 2003. Pursuant thereto, Housemaster issued an 18-page report wherein Housemaster gave "satisfactory" and "fair" marks for all categories of its inspection, including the electric, heating, plumbing and water heater. This report specifically stated, however, that the heating "Unit is at or beyond design life range but in working order at inspection. Have unit checked/serviced yearly by HVAC contractor. Anticipate repair or replacement cost in near future."

In November, 2003, defendants Robbins executed the Contract and all Riders thereto, including the Second Rider to the Contract, the latter of which was drafted as a result of the home inspection report. This Rider provides in pertinent part that:

... Sellers hereby agree, at Sellers' sole cost and

expense, to have the necessary installation/repair [*3]

work performed to the heating system in the Premises

in order that the upstairs bedroom and bathroom not

currently having heat have appropriate heating.

Additionally, Sellers, at Sellers' sole cost and expense,

shall replace the sheet rock under the basement stairs

of the Premises in order to remove any and all mold and

mildew that currently exists and shall "cap" or otherwise

remove the exposed electrical wires in the bedroom closet

and the two light switches connected to unknown sources.

Finally, Sellers agree, at Sellers' sole cost and expense

and in accordance with all applicable laws ... to remove

any and all asbestos pipe insulation located in the

basement of the premises. All such installation/work

provided for herein shall be performed in a workmanlike

manner by appropriately licensed and insured trades people

and shall be completed prior to the date of Closing.

The executed sale contract provided that all oral or written representations concerning the premises were merged into the contract, that plaintiff was entering into the contract after "full investigation" and that "[n]either party [is] relying upon any statement made by anyone else that is not set forth in this contract." Additionally, the contract stated that plaintiff is "fully aware of the physical condition and state of repair of the premises" and that plaintiff was entering into the contract "based solely upon such inspection and investigation and not upon any information, data, statements or representations, written or oral, as to the physical condition, state of repair, use, cost of operation or any other matter related to the Premises ... given or made by Seller or its representatives." Notably, the contract stated that plaintiff would accept the property "as is" and that delivery and acceptance of the deed at the time of closing "shall be deemed to constitute full compliance by Seller's (sic) with the terms, covenants, and conditions of this contract on their part performed."

After the sale contract was signed, it is not disputed that certain work was performed at the premises. According to defendants Robbins, in December, 2003, defendant Burr had requested John Robbins to open and remove a piece of sheet rock from a kitchen wall; Burr had hired defendant Fawn Fuel Oil, Inc. ("Fawn") to install duct work in the kitchen wall proceeding up to the second floor of the premises. Neither defendant was present at the time Fawn performed this duct work; subsequently, defendant [*4]John Robbins was asked by Burr to replace the kitchen sheet rock. He denies knowledge that any insulation had been removed from the kitchen wall during the course of this work.

On January 12, 2004, defendant Burr telephoned Steven Robbins informing him that there was a problem with the house thermostat. Steven arrived at the premises, noting that the house was not cold or frozen and that there were no broken pipes. Fawn was promptly called in to repair the thermostat. On that same repair date, Steven states that he observed that the water meter was leaking from a crack. He thereupon telephoned United Water, which came and repaired the meter. He denies having been informed by any one at United Water that the water meter cracked as a result of the house being too cold; rather, he avers that he was told that the water meter had cracked due to high water pressure. Steven denies ever having been told by Burr or Fawn that the house had frozen on that day and, on the only two occasions that he personally had visited the house, Steven states that the house was not cold nor frozen. According to Steven, the only time he had spoken with plaintiff was at the closing, which had amounted to nothing more than "small talk."

Defendant John Robbins avers that he had visited the house weekly and never had found the house cold or frozen, and he denies that there ever were any broken pipes. John claims that he had spoken with plaintiff on only two occasions, once when plaintiff had stopped by to check whether the dryer was gas or electric, at which time plaintiff had mentioned that he was going to replace the heating system, and then again at the closing. John denies that plumbers were present at the house on the date that plaintiff stopped by, as claimed by plaintiff. John claims that he never was informed by anyone, including Burr and Fawn, that the house ever had frozen, that pipes had burst or that the work performed by Fawn was inadequate to heat the upstairs bedroom and bathroom.

The closing took place on January 14, 2004. Defendants contend that at no time prior to or at the closing did plaintiff or his counsel notify defendants, orally or in writing, that defendants had failed to fulfill their contractual obligations, including those contained in the second rider, except with respect to defendants' failure to have removed the alleged mold on the basement sheet rock, for which plaintiff was given a $75.00 credit at the closing. Also, defendants note that there was never a request to adjourn the closing, nor any escrowing of money to protect plaintiff's rights or to address any concerns plaintiff had regarding the condition of the premises. [*5]

On April 27, 2004, plaintiff commenced the instant action, alleging two causes of action for fraud and conversion relating to his purchase of the property. In his bill of particulars served upon defendants, plaintiff asserts that, prior to the contract execution,

Defendants made repeated false representations (and

omissions) to plaintiff and its agents, which are

including but not limited to the following: Prior

to the Signing of the Contract of Sale: Defendants

would carpet the entire basement and stairs leading

from the basement; Defendants would provide central

heating to one of the upstairs bedrooms and its

adjoining bathroom; Defendants would remove mold in

the basement; Defendants would remove asbestos in the

basement; Defendants would properly maintain the house

prior to closing; and Defendants would install or have

a third party install smoke and carbon monoxide detectors.

Plaintiff further alleges in his bill of particulars that defendants made the following "false representations" and/or "omissions" after the signing of the contract:

Defendants claimed to have properly maintained the

property; Defendants denied that the premises had

ever become "frozen;" Defendants denied that any pipes

had broken or that there had been any problem with

the house; Defendants claimed merely that the water

meter had been replaced as a "favor" and that a new

thermostat was being installed for the heating

system when it was really being installed for the

water system; Defendants denied that there was any

asbestos on the property; Defendants painted over the

mold in the basement to hide it from detection rather

than remove it and claimed that the mold have been

remediated; Defendants claimed that they had properly

provided central heating to the upstairs bedroom and

bathroom when they had not and showed an inaccurate

bill to Plaintiff; Defendants claimed to have installed

the appropriate smoke and carbon monoxide alarms;

Defendants failed to disclose that they had diverted

heat away from the kitchen; Defendants failed to disclose

that they had removed insulation from the house;

Defendants failed to disclose that they had discovered

that the furnace in the house was incapable of providing [*6]

heat to the upstairs bedroom and bathroom; Defendants

failed to install the wall to wall carpeting in the

basement.

Defendants Robbins are now moving for summary judgment dismissing the complaint and all cross-claims.[FN2] Relying upon plaintiff's examination before trial testimony, defendant Burr's examination before trial testimony, defendants' own supporting affidavits, an affidavit from defendants' closing attorney and an affidavit from the United Water Company employee who had repaired the water meter, defendants argue that plaintiff had visited the property at least four times after the initial inspection, including a second "full" inspection on the day of the closing, that plaintiff was fully aware of the condition of the property immediately prior to closing, including his allegations that there was asbestos on the basement pipes, that there was mold on basement sheet rock, that there was no carpeting installed in the basement and that the heating for the upstairs bedroom and bathroom was inadequate, and that plaintiff had failed to raise any issues regarding any of the foregoing at the closing. Moreover, defendants Robbins contend that there is no evidence that the house or any pipes had ever froze, as plaintiff alleges, or that the water meter had cracked due to a freezing condition, or that there was asbestos on the basement pipes. Indeed, with respect to the alleged asbestos, defendants Robbins note that plaintiff had testified that he had discussed the asbestos with defendant Burr, not with defendants Robbins, and that she had informed him that it was rubber tape and not asbestos on the pipe. Moreover, defendants contend that Burr's testimony makes clear that it was she, not defendants Robbins, that had hired Fawn to install duct work to the upstairs bedroom and plaintiff's own testimony makes clear that neither defendants Robbins ever had made any representations to him regarding any of the foregoing, that any such statements were instead made by defendant Burr. As to the alleged removal of insulation from the house, defendants Robbins rely upon plaintiff's own testimony that it was Fawn which had removed same from the kitchen wall. With respect to [*7]plaintiff's claim that defendants had misrepresented that the pipes had never frozen, defendants Robbins refer to plaintiff's own testimony that the pipes in the house have never burst since plaintiff's ownership of the house and have proffered an affidavit from Nick Maltese, a United Water Company employee, wherein he states that he had made a service call to the property on January 14, 2004, whereupon he found the water meter cracked. Based upon his 26 years of experience, it was Mr. Maltese's opinion that the water meter had cracked due to high water pressure and not due to pipes freezing and/or due to the inside of the house becoming too cold.

Based upon the contractual provisions providing that all representations were merged into the contract, that plaintiff had purchased the house "as is" and that acceptance of the deed by plaintiff had extinguished all obligations defendants Robbins had under the contract and rider, moving defendants argue that plaintiff's claim that defendants "intentionally and willfully" had made repeated "false statements and omitted material facts" as to the condition of the property and as to the work performed, upon which plaintiff reasonably had relied in signing the contract and thereafter closing on the property are without both factual and legal merit. Further, defendants Robbins contend that plaintiff cannot establish any claim for fraudulent misrepresentation since plaintiff admits that the Robbins themselves never made any statements to plaintiff about the complaints in issue and he cannot establish as a necessary element thereof that there was reasonable reliance by plaintiff. Nor is there any viable claim for fraudulent concealment, according to defendant Robbins, since no fiduciary relationship existed in this arms length transaction. According to defendants, the true nature of plaintiff's claim is one for breach of contract, which he has not pleaded because in fact no such viable claim exists given the contract language. Since at issue is nothing more than a breach of contract claim, a conversion cause of action also does not properly lie, defendants Robbins insist.

Based upon the foregoing, defendants Robbins, in addition to seeking judgment dismissing the complaint as a matter of law, also seek imposition of costs and/or sanctions pursuant to CPLR 8303-a and 22 N.Y.C.R.R. 130-1.1 for this allegedly frivolous law suit which has cost them legal fees in excess of $12,000.

Plaintiff vigorously opposes the motion and is cross-moving for an Order striking defendants Robbins' answer pursuant to CPLR 3126 or, alternatively, compelling Robbins to respond to [*8]plaintiff's discovery demands. According to plaintiff's theory of this action, the defendants are engaged in a "scheme" whereby the defendant brokers find houses in need of renovation for defendants Robbins to purchase, the Robbins then make cosmetic changes and thereupon quickly re-sell the houses, with defendants as their selling agents and defendant Burr acting as the "front person" who interfaces with the prospective buyers. According to plaintiff, "the Robbins and the Brokers cut corners and intentionally do not perform the work properly, all in an effort to trick the buyer into signing a contract of sale and then ultimately closing on the purchase." Plaintiff argues herein that, notwithstanding the executed rider to the contract, defendants Robbins "had no intention of providing any of the relevant work" and "pretended to provide heat to the upstairs bedroom in order to trick [plaintiff] into closing on the sale of the Premises."

Plaintiff argues that defendant Fawn had informed Robbins and Burr that heat could not be provided to the upstairs bedroom without replacing the entire heating system and that they nevertheless had insisted that Fawn do the faulty work "to make it appear that the work had been properly performed ..." In support of this claim, plaintiff submits an affidavit from Roger Fawn, Fawn's president, wherein he avers that he had informed Burr, after his examination of the premises, that he did not think it possible for the current house furnace to have enough power to heat the upstairs bedroom. According to Mr. Fawn, he had explained to Burr that it would be impossible for heat to go up a duct through the kitchen exterior wall, which was not adequately insulated, and for the heat to be kept sufficiently warm to properly heat the bedroom, to which Burr replied that "she did not care." He also claims that Burr then confided in him that she and the Robbins had "tricked" plaintiff and that they needed only to continue to fool him until he closed on the deal.

Plaintiff also submits an affidavit from John Jentilucci, Fawn's employee in charge of sheet metal and installations of duct work. He describes his encounter with Burr, she first asking him merely to drill a register into the wall in the upstairs bedroom, without even a hole in the wall or a duct leading downstairs to the furnace. He claims to have objected to performing such work, explaining that doing so would not provide heat to a room. Burr then relented, according to Mr. Jentilucci, instead asking him to install duct work in an exterior wall of the house from a register in the kitchen to the upstairs bedroom. Mr. Jentilucci states that although he informed Burr that the requested project "would [*9]not work," Burr responded that "she did not care if heat would be actually provided to the upstairs bedroom, but simply wanted it to appear to [plaintiff] that the upstairs bedroom was adequately heated. (Emphasis in original)." He too states that Burr then confided in him that she and Robbins had "tricked the buyer ... into signing a contract of sale, and that they just needed to trick [plaintiff] into closing on the purchase of the premises and wanted to spend as little money as possible in the process." Mr. Jentilucci further avers that he had observed a hole in the kitchen exterior wall from which all of the insulation had been removed and that "it was clear that this was the area which the Robbins wanted the duct to be located." In his attempt to get heat into the upstairs bedroom, Mr. Jentilucci states that he closed off the kitchen register, but that this did not cause heat to go into the bedroom and had significantly reduced the heat into the kitchen. Two days later, Mr. Jentilucci states that he was called back to the premises, where Burr and John Robbins informed him that they were not happy with the work he had done, they having stated to him that "there was not enough airflow going into the upstairs bedroom to fool [plaintiff] into closing on the purchase of the Premises." Other suggestions about how to get heat to the upstairs bedroom were discussed but, according to Mr. Jentilucci, Robbins refused to purchase a new furnace or move any electrical wires. Mr. Jentilucci also states that he eventually just adjusted the damper and that John Robbins was present at that time and that he specifically told Robbins at that time that "the work [he] had done would not adequately heat the upstairs bedroom."

Plaintiff also maintains, as supported by his affidavit in opposition and that of his closing attorney, Gary Sastow, that he had appeared at the house the day before the closing, and encountered John Robbins and "plumbers and employees from United Water." John Robbins advised plaintiff that they were installing a new water meter and replacing a hot water thermostat "as favors." Plaintiff argues that he now knows, based upon the submitted affidavit from United Water employee Steve Houst, who is the supervisor of the customer service meter department, that that statement was untrue. The computerized work order states that the work done was a meter change, with the reason code "FRZ FROZEN." Mr. Houst further states that there is no evidence that there was a high water pressure problem at the premises. Plaintiff immediately informed his attorney, Mr. Sastow, of the activity at the house, requesting him to confirm with the Robbins that there [*10]was nothing wrong. Mr. Sastow telephoned the Robbins' closing attorney, who, after checking with the Robbins, assured Mr. Sastow that the house had not frozen.

Plaintiff complains that in defendant Robbins' moving papers his examination before trial testimony pertaining to the critical issue of whether he had knowledge the morning of the closing that there was no heat upstairs was quoted incompletely and out of context.

Plaintiff complains that the Robbins made repeated false statements at the closing with respect to their having remediated the mold, that the tape around the pipes was not asbestos, that the heating had been corrected in the house, even providing a copy of the Fawn bill showing the heating work done, denying that the house had froze and claiming to have installed the appropriate smoke and carbon monoxide detectors.

Further, plaintiff claims that defendants improperly maintained the premises by turning off the heating system throughout the winter. Plaintiff avers that within one day after moving into his house, he observed much of the wood throughout beginning to break and warp, with cabinets splitting, doors cracking, molding separating and window frames warping. Plaintiff claims that he consulted with various carpenters and was advised that the only reason this would be happening to the wood is that the house was frozen for an extended period of time and was rapidly re-heated shortly before the closing. Additionally, plaintiff claims that the kitchen froze one day after the closing and again the following week because defendants improperly had diverted heat from the kitchen to the upstairs. Plaintiff argues that according to the submitted gas and electric bills relating to the premises during the period of defendants Robbins' ownership of the house up until the closing, there was virtually no usage of either during said period. Additionally, plaintiff claims to since have tested the material on the pipes and, contrary to the false representations at the closing, the material was 32% asbestos.

Plaintiff claims that when he later contacted Fawn, Mr. Jentilucci, Richard DeSilva and Mr. Fawn, each had made statements to him consistent with their affidavits herein that the Robbins merely had wanted to trick plaintiff into thinking that the duct work was properly installed.

Plaintiff also has proffered an affidavit from Steven Abbattista, an engineer, who opines not only that Fawn work was completely inadequate to provide appropriate heat to the upstairs, [*11]but that the gas and electric bills demonstrate a usage showing that the furnace was working at full capacity for only two days from September, 2003 through January 14, 2004, that this was not adequate heating for the house and that "one would anticipate the Premises would freeze, and in all likelihood water pipes would have burst, water meters would freeze and crack, and other damage would occur ..."

Finally in opposition to defendants Robbins' motion, plaintiff submits an affidavit from Dominick Posillico who has had a similar experience to plaintiff's of purchasing from defendants Robbins a house where defendants Ragette and Burr were the selling brokers. Mr. Posillico describes how the premises had latent defects, including sewage leaking into the house when the washing machine ran, and mold growing on bathroom walls and wooden floors buckling due to a bathroom waste pipe not having been properly connected, resulting in waste accumulating under the floors, and the Robbins having done faulty work or failing to do work that had been promised, such as installing a fence, and lying about having installed new wooden floors, all of which had cost Mr. Posillico thousands of dollars to repair. According to Mr. Posillico, the Robbins have refused to help in any way with the afore problems, stating that since the closing has occurred they did not have to do anything to correct the problems.

Plaintiff also is cross-moving for an Order compelling production of discovery documents identified in plaintiff's Second Notice to Produce, which plaintiff asserts is in defendants Robbins' possession and control. Plaintiff complains that defendants have failed to produce even copies of closing documents relating to the subject house sale.

Defendants Burr and Ragette, while not opposing defendants Robbins' motion for summary judgment dismissing the complaint and cross-claims, take issue with said defendants' statements in their supporting affidavits that Burr was not their agent.[FN3] They further argue that while plaintiff's opposition papers make "numerous unsupported allegations ... which attempt to impune (sic) the integrity and actions of Burr," they have chosen to not respond to same herein since no relief was requested as against these [*12]defendants; defendants Burr and Ragette note their intention to move for summary judgment.

Initially, in light of co-defendants Burr and Ragette's failure to substantively have opposed defendants Robbins' motion seeking summary judgment dismissing their cross-claims for indemnification and contribution, which failure must be deemed a concession as to the validity of defendants Robbins' argument in support of dismissal, see Tortorello v. Carlin, 260 AD2d 201 (1st Dept. 1999); Springer v. Keith Clark Pub. Co., 191 AD2d 922 (3rd Dept. 1993), lv. to app. dsmd. 82 NY2d 706 (1993); John William Costello Associates, Inc. v. Standard Metals Corp., 99 AD2d 227, 228 (1st Dept. 1984), app. dsmd. 62 NY2d 942 (1984), said cross-claims are hereby dismissed.

Parenthetically, the Court notes the seeming lack of merit to any claim for contribution since the record does not support a finding that Robbins had owed any duty to Burr and Ragette, or to plaintiff, and that it was the breach of this duty which had caused the alleged injury. See Crimi v. Black, 219 AD2d 610, 611 (2nd Dept. 1995); Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 125 AD2d 754, 756, affd. 71 NY2d 599 (1988). Similarly, defendants Burr and Regatte's cross-claim for implied indemnification appears questionable where there are allegations of wrongdoing directly against said defendants. See Trump Village Section 3, Inc. v. New York State Housing Finance Agency, 307 AD2d 891 (1st Dept. 2003), lv. to app. dsmd, 98 NY2d 671 (2002); Trustees v. Mitchell/Giurgola, 109 AD2d 449 (1st Dept. 1985). After this Court's careful review of the record at bar, consideration of the parties' respective arguments and application of the proper summary judgment principles and controlling substantive law, the Court hereby grants defendants Robbins motion for summary judgment to the extent that the conversion cause of action is hereby dismissed, as well as all of plaintiff's claims relating to any alleged misrepresentations by defendant Robbins, other than the misrepresentation/concealment claims relating to the furnishing of adequate heating to the upstairs bedroom and bathroom, the failure to have disclosed knowledge that the furnace was incapable of providing heat to the upstairs bedroom and bathroom, that insulation had been removed from and heat diverted out of the kitchen, and said defendants' failure to properly have maintained the premises by keeping it properly heated, are all hereby dismissed.

As to the conversion cause of action, conversion has reference to specific property which is owned by the plaintiff, or to which [*13]he has the right of immediate possession. See Rothchild v. Schwarz, 28 Misc. 521 (App. T. 1899). Conversion is defined as a "distinct act of dominion wrongfully exerted over another's personalty in denial or inconsistent with his rights therein." Schwartz v. Schwartz, 81 Misc 2d 177 (Civ. Ct. 1974), citing Meyer v. Price, 250 NY 370, 381; see, also Meese d/b/a Interscience Associates v. Miller, 79 AD2d 237 (4th Dept. 1981); Laurent v. Williamsburgh Savings Bank, 28 Misc 2d 140, 143-144 (Sup. Ct. Kings Co. 1954); Koslow, Inc. v. Bletterman, 23 Misc 2d 340 (Sup. Ct. Nass. Co. 1960). To establish a cause of action for conversion, a plaintiff must show ownership or superior rights to possession to a specific identifiable thing and must show that the defendant had exercised an unauthorized dominion over the thing in question to the alteration of its condition or to the exclusion of plaintiff's superior rights. See Estate of Giustino v. Estate of DelPizzo, 21 AD3d 523 (2nd Dept. 2005); AMF, Inc. v. ALGO Distributors, Ltd., 48 AD2d 352, 356-357 (2nd Dept. 1975); Independence Discount Corp. v. Bressner, 47 AD2d 756, 757 (2nd Dept. 1975). Moreover, it has been held that a claim to recover damages for conversion cannot be predicated upon a mere breach of contract, see MBL Life Assurance Corp. v. 555 Realty Corp., 240 AD2d 375 (2nd Dept. 1997), and that a conversion claim can only be maintained upon a showing that there has been a demand for the return of the property and a refusal to return same. See J.S. Gourmet, Inc. v. Bretton Woods Home Owners Ass'n, Inc., 11 AD3d 583, 585 (2nd Dept. 2004); Tache-Haddad Enterprises v. Melohn, 224 AD2d 213 (1st Dept. 1996); Mauro v. Rossi, 200 AD2d 392 (1st Dept. 1994); Agwam Trading Corp. v. Malbin Co., Inc., 37 AD2d 946 (1st Dept. 1971).

Applying the foregoing standards to the complaint and proof at bar, it is clear that a conversion cause of action does not properly lie since not only did plaintiff not have title, possession or control of the house during the time period which plaintiff claims defendants failed to properly maintain the house, and thus he did not have a superior possessory right to the house, which fact by itself necessarily defeats plaintiff's claim, see Fiorenti v. Central Emergency Physicians, PLLC., 305 AD2d 453 (2nd Dept. 2003), but it is clear that plaintiff's claim actually arises within a breach of contract for which a conversion claim does not lie. Moreover, there is no evidence, nor could there be given the nature of the claim here involved, that plaintiff ever requested defendant to return the property and that defendant had failed to do so. Accordingly, the conversion cause of action must [*14]be and is hereby dismissed.

Addressing the fraud based cause of action, in order to sustain a cause of action for fraud, it must be shown that the party against whom such fraud is claimed uttered a falsehood intending to deprive the plaintiff of a benefit and that plaintiff was thereby deceived and damaged. The essential elements of the action are: (1) a misrepresentation of fact, (2) which was false and known and known to be false by the defendant, (3) that the representation was made for the purpose of inducing the other party to rely upon it, (4) that the other party did justifiably so rely, (5) causing injury. See Buxton Manufacturing Co., Inc. v. Valiant Moving & Storage, Inc., 239 AD2d 452-453, 454 (2nd Dept. 1997); Channel Maselle v. Leemilt's Flatbush Avenue., Inc., 112 AD2d 1027 (2nd Dept. 1985); Clearview Concrete Prods. Corp. v. S. Charles Gherardi, Inc., 88 AD2d 461, 467 (2nd Dept. 1982). A viable fraud cause of action may also be predicated upon an allegation of non-disclosure, which may be tantamount to an affirmative misrepresentation, when a party is duty-bound to disclose pertinent information. See Melia v. Riina, 204 AD2d 955, 956 (3rd Dept. 1994), lv. to app. dsmd. 85 NY2d 857 (1995).

However, New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal, as here, at arms length. See Rector v. Calamus Group, Inc., 17 AD3d 960 (3rd Dept. 2005); London v. Courduff, 141 AD2d 803 (2nd Dept. 1988), app. dsmd. 73 NY2d 809 (1988). Thus, to prevail on a fraudulent non-disclosure claim in the real estate context, the plaintiff must demonstrate that the defendant breached an affirmative duty to disclose which arose as of the result of the seller's having taken steps to actively conceal a condition. See Jablonski v. Rapalje, 14 AD3d 484 (2nd Dept. 1985); Platzman v. Morris, 283 AD2d 561 (2nd Dept. 2001); Bethka v. Jensen, 250 AD2d 887 (3rd Dept. 1998); Gabberty v. Pisarz, _ {10 Misc 3d 1010} NYS2d _, 2005 WL 3068244 (NY Sup. 2005).

Applying the foregoing law to the facts at bar, the Court finds that defendants Robbins are not entitled to judgment as a matter of law dismissing plaintiff's fraudulent misrepresentation/concealment claims against them relating to the alleged failures to have furnished adequate heating to the upstairs bedroom and bathroom and/or to have disclosed knowledge that the furnace was incapable of providing heat to the upstairs bedroom and bathroom, their alleged removal of insulation from the kitchen and the diversion of heat out of the kitchen and their [*15]failure to have disclosed same, and their alleged failure to have maintained the premises by keeping same properly heated and their failure to have disclosed same. Notwithstanding defendants Robbins' protestations to the contrary, the record provides ample support for plaintiff's contention that defendants Robbins intentionally undertook the above affirmative physical acts of concealment and misrepresentation and thereby had deceived plaintiff, resulting in plaintiff's damage. All of these claims, the Court finds, involve matters not only peculiarly within defendants Robbins' superior knowledge, cf. Boothe v. Alpha Development Corp., 14 AD3d 702 (2nd Dept. 2005), but also involve affirmative acts by defendants which plaintiff may not have been able to ascertain on the day of or prior to the closing, even through the exercise of his due and reasonable diligence.

It matters not that defendants Robbins themselves deny any direct involvement in some if not all of the above and claim that their agent defendant Burr had exceeded the scope of her authority. Not only are defendants Robbins' denials of direct involvement in the above claimed actions contradicted and belied by certain of plaintiff's submissions at bar, thus creating a jury question of credibility, but a jury question also is presented as to whether defendants Robbins, as the principals for their sales agent Burr, had given Burr actual, if not apparent, authority to make certain representations relating to the house upon which plaintiff reasonably had relied, and/or had ratified Burr's acts or statements made outside of the scope of her authority, particularly with respect to her having hired plumbers to perform the heating work, such that they are bound by her statements and actions and liable therefore. See Parlato v. Equitable Life Assur. Soc. of U.S., 299 AD2d 108 (1st Dept. 2002); Chubb & Son Inc. v. Consoli, 283 AD2d 297, 298 (1st Dept. 2001), citing 2A NY Jur.2d, Agency, §§ 290, 291; Bowers v. Merchants Mut. Ins. Co., 248 AD2d 1005 (4th Dept. 1998); Ellis v. Metlife Sec. Ins. Co. of New York, 130 AD2d 951 (4th Dept. 1987).

Accordingly, the Court determines that triable issues of fact with respect to the fraud claim have been successfully raised including, but not necessarily limited to, whether defendants Robbins or their agents undertook affirmative actions to conceal the inadequacy of the furnace to furnish adequate heat to the upstairs bedroom and bathroom, although the providing of same was required by the contract rider, whether they intentionally had misrepresented through the hiring of a plumber and presentment of his bill that the necessary duct work to provide adequate heat to [*16]the upstairs bedroom and bathroom had been performed, whether they had concealed that interior kitchen wall plumbing work had been performed which resulted in the improper removal of insulation and the diversion of heat from the kitchen and whether defendants Robbins had failed to properly heat the premises throughout the period between the execution of the contract and closing.

Notwithstanding the foregoing analysis of law, it also is well settled that, while a general merger clause in a contract of sale is ineffective to exclude parole evidence of misrepresentation and fraud in the inducement, a specific disclaimer clause, such as that included in the contract of sale here in issue, defeats a plaintiff's allegations that the agreement was executed in reliance upon contrary oral representations. See Fabozzi v. Coppa, 5 AD3d 722 (2nd Dept. 2004); Rosen v. Watermill Development Corp., 1 AD3d 424 (2nd Dept. 2003); McGowan v. Winant Place Associates, 270 AD2d 466 (2nd Dept. 2000); Busch v. Mastropierro, 258 AD2d 492 (2nd Dept. 1999); Rudnick v. Glendale Systems, Inc., 222 AD2d 572 (2nd Dept. 1995); Taormina v. Hibsher, 215 AD2d 549 (2nd Dept. 1995); Weiss v. Shapolsky, 161 AD2d 707 (2nd Dept. 1990).

The Contract of Sale here in issue, in addition to stating that all prior representations were merged therein, also provided that no representations would survive the closing, that plaintiff had inspected the property and was entering into the contract based upon his own investigation, and was taking the property "as is," without any reliance upon oral representations. Accordingly, the Court is constrained to dismiss plaintiff's other fraud-based claims, including plaintiff's claims that defendants Robbins had misrepresented that they would carpet the basement stairs, that they would remove asbestos in the basement, that they would remove mold in the basement and that they would install smoke and carbon monoxide detectors. It is manifest that all of these complaints concerned matters not peculiarly within defendants' knowledge, but which were readily observable by plaintiff prior to the closing. Yet, for reasons not explained, plaintiff made no issue regarding any of them prior to or at the closing, other than the $75.00 credit awarded plaintiff for defendant Robbins' failure to have removed the alleged mold. Accordingly, these other fraud-based claims are hereby dismissed.

The Court also rejects plaintiff's attempt to fashion a fraud claim based upon his allegation that defendants Robbins had no intention to provide any of the work agreed upon. Courts long have consistently held that the failure to fulfill promises to [*17]perform acts in the future is merely a breach of contract and not a fraud. See Pepper v. Hezghia, 307 AD2d 959 (2nd Dept. 2003); Nathanson & Co. v. Marinello, 192 AD2d 575 (2nd Dept. 1993); Spellman v. Columbia Manicure Mfg. Co., Inc., 111 AD2d 320, 322 (2nd Dept. 1988).

With respect to defendants Robbins' motion further seeking an award of costs and attorney's fees pursuant to CPLR 8303-a, same is denied in the exercise of this Court's discretion. The Court cannot find that this action is frivolous in that it was not commenced in bad faith, nor to harass or maliciously injure defendants.

Addressing plaintiff's cross-motion pursuant to CPLR 3126 striking defendant Robbins' answer, or, alternatively, compelling said defendants pursuant to CPLR 3124 to fully respond to plaintiff's discovery demand, the cross-motion is granted to the extent only that within thirty (30) days after the date of this Order, defendants Robbins shall furnish a [courtesy] copy of the Robbins' closing documents for the sale of the subject premises, copies of invoices and checks used to pay for materials purchased and for the work done on the subject premises, copies of invoices for any repairs made to the premises, including the heating system, and copies of bills and documents from United Water and Consolidated Edison. The Court finds it otherwise impossible to rule on plaintiff's application for relief where plaintiff insists that these documents never were previously served by defendants Robbins, and the Robbins claim that all such documents were previously served. Any other demands in plaintiff's Second Notice to Produce are deemed either to be no longer applicable in light of the Court's dismissal of certain claims herein, and/or irrelevant, and/or matters of public records which plaintiff can himself obtain. Should defendants Robbins fail to timely comply herewith, this Court shall, upon receipt of an affidavit of non-compliance and proposed Order served on notice, issue an Order imposing an appropriate preclusion sanction pursuant to CPLR 3126.

Finally, the parties shall expeditiously complete all remaining discovery and appear before the undersigned for a trial readiness conference to be held at 9:30 a.m. on April 5, 2006. Plaintiff is expected to file his note of issue at that time. No adjournment of this conference date is permitted without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions. [*18]

Dated: February 16, 2006

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Defendants Robbins' two separate sets of sur-replying papers were not considered by this Court since same are not authorized by the CPLR and the parties' stipulation, dated November 4, 2005, while including an agreement as to the service of same, appears not to have been "So Ordered" by this Court.

Footnote 2:A default judgment was previously entered against defendant Fawn and, following an inquest as to damages, judgment in plaintiff's favor as against defendant Fawn was entered on August 2, 2005, in the sum of $31,900.

Footnote 3:It is to be noted that defendants Robbins never in fact disputed that defendant Burr was their real estate agent; rather, their position is that her authority was limited to that set forth in the Exclusive Right to Sell Agreement to negotiate the sale of the premises and that she had no authority to make any representations as to the condition of the property so as to bind Robbins.