Maxwell v Leach

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Maxwell v Leach 2019 NY Slip Op 34252(U) January 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 60584/18 Judge: David F. Everett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 statutory time appeals as of of right right under CPLR 5513 5513 (a), serve To commence commen~e the 30-day 30-~ay sta~tory time period period for appeals under CPLR (a), you are are advised advised to serve of thIs order, order, wIth upon all parties. a copy copy ofth1s with notIce notice of of entry, entry, upon parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW SUPREME NEW YORK YORK WESTCHESTER COUNTY OF WESTCHESTER COUNTY -------------------------------------------------------, --------X ------------------------------------------------------_:_--------)( ANDREW THERESA ANDREW MA)(WELL MAXWELL and THERESA LETTERIO-MA)(WELL, LETTERIO-MAXWELL, Plaintiffs, Plaintiffs, Index 60584/18 Index No. No. 60584/18 Mot. Mot. Seq. Nos. Nos. 001, 002, 003 Decision Order Decision and Order -against-againstLAMARETTE PROCHEK INSPECTION INSPECTION LAMARETTE LEACH, LEACH, PROCHEK SERVICES, INC. d/b/a d/b/a PROCHEK, PROCHEK, REKHA REKHA M. SERVICES, CAROZZA, ROSE CAROZZA, DOUBLE ROSE ANNE ANNE CAROZZA, DOUBLE C CAROZZA, REALTY CORP., and KELLER WILLIAMS REALTY CORP., KELLER WILLIAMS REALTY REALTY PARTNERS, PARTNERS, Defendants. Defendants. ------------------------------------------------------------~----)(-----X -----------------------------------------------------------EVERETT, EVERETT,1.J. The following papers The following papers were were read on the motions: motions: 001 Notice Notice of of Motion/Affim1ation Motion/Affirmation in Supp/Exhibits Supp/Exhibits A-G/Memorandum A-G/Memorandum of of Law Law ((docs docs 337-46) 7-46) 002 Notice of Motion/Sudano SupplExhibits A-D/ Motion/Sudano Affidavit/Affirmation Affidavit/Affirmation in Supp/Exhibits A-DI Notice of Affirmation Opp/Reply Affirmation (docs 26.33, Affirmation in Opp/Reply Affirmation (docs 26-33, 48,52) 48, 52) of Motion/Affirmation Supp/Exhibits A-G/Memorandum A-G/Memorandum of of Law Law Motion/Affirmation in Supp/Exhibits 003 Notice Notice of ((docs docs 337-46) 7-46) Defendant Carozza (R Carozza) sequence number number 001, Carozza) moves, moves, under under motion motion sequence Defendant Rekha Rekha M. Carozza CPLR 3211 (a) (l) (I) and (7), dismissing for an order, order, pursuant pursuant to CPLR dismissing the complaint complaint as against against her. Defendant HomeChek Estate Services, Inspection Defendant HomeChek Real Estate Services, Inc., sued herein herein as Prochek Prochek Home Home Inspection Services, Inc. d/b/a (ProChek), moves, sequence number number 002, 002, for an order order Services, d/b/a ProChek ProChek (ProChek), moves, under under motion motion sequence dismissing the complaint complaint and cross cross claim Rose Anne Carozza dismissing claim asserted asserted againstit against it by defendants defendants Rose Anne Carozza (Double C). Defendant (RA Carozza) Carozza) and OCR DCR Realty, Realty, Inc., d/b/a d/b/a Double Double C. Realty Realty Corp. Corp. (Double Defendant 1 of 17 [*FILED: 2] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 Keller Williams Realty Partners Partners (K~ller Williams) moves, moves, under under motion motion sequence number 003, Keller Williams Realty (K~ller Williams) sequence number CPLR 3211 (a) (1 (1), dismissing the complaint. complaint. The order, pursuant pursuant to CPLR ), (5) and (7), dismissing The motions, motions, for an order, under motion motion sequence numbers 001,002 001, 002 and 003, are consolidated upon the the under sequence numbers consolidated for disposition, disposition, and upon foregoing granted to the extent otherwise denied. denied. foregoing papers, papers, the motions motions are granted extent set forth below, below, and are otherwise The following documentary following facts are taken from the pleadings, pleadings, motion motion papers, papers, affidavits, affidavits, documentary evidence and the record, otherwise indicated. evidence record, and are undisputed undisputed unless unless otherwise indicated. Plaintiffs Maxwell and Theresa Letterio-Maxwell commenced commenced the Plaintiffs Andrew Andrew Maxwell Theresa Letterio-Maxwell the instant instant action action by filing a summons summons with notice, amended, in the Office of the Westchester Westchester County County Clerk Clerk on Office of notice, as amended, July 11, 11,2018, followed by plaintiffs' filing ofa of a complaint 10,2018, seeking damages 2018, followed plaintiffs' filing complaint on August August 10, 2018, seeking damages stemming from their of a single single family family house stemming their purchase purchase of house at 2785 Heathercrest Heathercrest Drive, Drive, Yorktown Yorktown Heights, (Property). The dispute dispute centers actions and/or and/or inactions occurred Heights, New New York York (Property). centers on the actions inactions that that occurred prior plaintiffs taking taking possession possession of of the Property. Property. prior to plaintiffs It is undisputed undisputed that that plaintiffs plaintiffs and defendant defendant seller, Lamarette Leach Leach (Leach), seller, Lamarette (Leach), executed executed a residential contract of of sale (Contract) (Contract) on July July 10, 2015, 2015, and an amendment amendment to contract of sale sale on contract of residential contract July 28, 2015, 2015, by which which the agreed agreed upon $308,200.00 to upon price price for the Property Property was was reduced reduced from $308,200.00 $302,000.00. The closing closing took 6,2015. agreement of of the same same $302,000.00. took place place on August August 6, 2015. By post-closing post-closing agreement 2015, plaintiffs agreed that allowed to remain date, August August 6, 2015, plaintiffs and Leach agreed that Leach Leach would would be allowed remain in the ' Property six extra extra days, or until August 12,2015. and conditions of the postProperty August 12, 2015. Among Among the terms terms and conditions of postclosing agreement agreement is the provision granting plaintiffs "the right prior to closing provision granting plaintiffs "the right to inspect inspect the premises premises prior delivery of (post-closing agreement agreement ~ 15). Plaintiffs of the Property Property of possession" possession" (post-closing Plaintiffs took took possession possession of delivery on August August 12, 12,2015, commenced the instant instant action action for damages damages approximately approximately three years 2015, and commenced three years against six entities entities and/or and/or individuals 2015 transaction. later against individuals involved involved in the 2015 transaction. 2 2 of 17 [*FILED: 3] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 addition to suing suing Leach, Leach, plaintiffs plaintiffs bring claims against against ProChek, ProChek, the home home inspection inspection In addition bring claims a company they retained retained to perform perform a home home inspection inspection of of the Property Property prior prior to their their entering entering into company Contract. The inspection inspection was was performed performed on June June 8,2015, 8, 2015, by ProChek's ProChek's employee, employee, "David." "David." ·. the Contract. Plaintiffs are suing suing Keller Keller Wi1liams, Williams, the real estate estate broker broker office office whose whose agent, agent, non non party party Gerald Gerald Plaintiffs Wei I (Weil), (Wei I), listed listed the Property Property for sale on behalf of Leach, Leach,and Double C, the the real estate estate office, office, and Double Weil behalf of whose agent, RA Carozza, Carozza, was the selling selling agent agent working working with with plaintiffs plaintiffs with with respect respect to their their whose purchase of of the Property. Property. Plaintiffs Plaintiffs are also suing suing RA Carozza's Carozza's daughter-in-law, daughter-in-law, Rekha Rekha purchase Carozza, the attorney attorney they they hired, hired, based based on RA Carroza's Carroza's recommendation, recommendation, to represent represent them them in Carozza, their purchase of the Property. Property. their purchase of The complaint's complaint's 11 11 causes causes of of action action arise arise from plaintiffs' plaintiffs' allegations allegations that, that, on on May May 6, The 2015, Keller Keller Williams Williams published published an MLS listing listing for the Property Property that that was was based based on 2015, representations made made by Leach Leach in conjunction conjunction with information information gathered gathered by Weil, Wei!, who viewed viewed representations the Property Property as part part of of his duty duty as listing listing agent. agent. Plaintiffs Plaintiffs claim claim that, at the time time of of the the listing, listing, both Leach Leach and Keller Keller Wi11iams Williams were were aware aware of, but failed to disclose, disclose, certain certain defects defects at the both Property and/or and/or latent latent defects, defects, which which were covered covered over' over so as to make make them them not readily readily Property detectable by persons persons viewing viewing the Property Property (Defects). (Defects). Plaintiffs Plaintiffs identify identify the the fo1lowing following Defects: Defects: detectable (I) a 11 faulty roof roof that that was listed listed as a new roof; (2) water water damage damage caused caused by the faulty faulty roof; roof; (3) (1) conditions existing existing in the stairways, stairways, closets, closets, basement basement and sheetrock; sheetrock; (4) faulty faulty exterior exterior mold conditions rotting sill plates plates and joints; bowing and rotting rotting ceiling. ceiling. Plaintiffs Plaintiffs claim claim that, that, ·. siding; (5) rotting joints; and (6) bowing by virtue to the general virtue of of the listing. listing,, Leach Leach and Keller Keller Williams Williams made made implicit implicit representations represen;ations general I public that the Property Property was in reasonably reasonably good, good, safe and livable livable condition, condition, and that that there there was no public 3 3 of 17 [*FILED: 4] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 need for for substantial substantial or expensive expensive repairs, except as to disclosed disclosed items, that the misleading repairs, except items, and that misleading representations were made with of deceiving representations were made with the intent intent of deceiving the prospective prospective purchasers. purchasers. plaintiffs claim relied to their their detriment detriment on the cause of In the first cause of action, action, plaintiffs claim that they relied ' misrepresentations made made by Leach Leach and Keller Williams in consummating sale, and that, misrepresentations Keller Williams consummating the sale, that, but for.the misrepresentations, they would have have discovered the ,Defects prior prior to gaining possession of of for the misrepresentations, they would discovered the'Defects gaining possession the August 12, 12,2015, second cause cause of ofa~tion, the· Property Property on August 2015, and responded responded accordingly. accordingly. · In the second a9tion, plaintiffs enriched, in that, was due to their their plaintiffs claim claim that that Leach Leach and Keller Keller Williams Williams were were unjustly unjustly enriched, that, it was concealment and misrepresentations misrepresentations that they (plaintiffs) (plaintiffs) were overestimate the acts of of concealment were caused caused to overestimate pay more than they should have. paid. The third cause of action value of of the Property, Property, and to pay more than should have.paid. third cause of action Keller Williams and competent, competent, and that that , charges charges Keller Williams. with with breaching breaching its duty to plaintiffs plaintiffs to be honest honest and . negligent manner manner in which listed the Property the negligent which it listed Property caused caused plaintiffs plaintiffs to incur incur damages damages by purchasing fourth cause cause of action charges charges Keller Keller Williams of action Williams with with breaching breaching its purchasing the Property. Property. The fourth impart correct correct information information to plaintiffs about the Property, were duty to impart plaintiffs about Prope11y, and that that plaintiffs plaintiffs were damaged by relying relying on the information information provided provided in the listing, listing, which which failed damaged failed to disclose disclose the cause of plaintiff charge with negligence negligence Defects. Defects. In the fifth cause of action, action, plaintiff charge RA Carozza Carozza and and Double Double C with of their their duty to them them by facilitating facilitating their of the Property, when they, ·. and breach breach of their purchase purchase of Property, when . ,: indi,vidually, have been aware aware of of the Defects; Defects; (2) were were acting acting in indiyidually, and collectively: collectively: (1) (l) should should have co~flict cor{flict with with their their responsibilities responsibilities as a buyer's buyer's agent; agent; (3) acted acted with ·with indifference, indifference, and not not in ,· I. when they promoted their purchase of the a. . plaintiffs' plai~tiffs' best interest, interest, when prom?ted their purchase of tl)e Property Property in order order to obtain obtain a-· . commission; referred plaintiffs David, because co~mission; (4) referred plaintiffs to ProChek, ProChek; and in particular particular to David, because he was an engineer; and (5) referred Carozza, who of interest interest in engineer; referred plaintiffs plaintiffs to Rekha Rekha Carozza, who had a conflict conflict of ' representing plaintiffs' interests. In the sixth sixth cause cause of of action, action, plaintiffs claim that . rep;esenting plaintiffs' best best interests. plaintiffs claim that RA 4 If,iI, 4 of 17 [*FILED: 5] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 Carozza a~d and Double Double C promoted representations made in the li$ting listing about about the the condition condition C~rozza promoted the .false representations _made in_ ofthe Property, Property, and failed failed to assist assist them them in in their their efforts efforts t~ to ascertain ascertain correct correct information information about about the of:the Property. The seventh seventh cause cause of of actiori action charges charges Rekha Rekha Carozza Carozza with with legal malpractice, malpractice, claiming claiming Property. , I that she breached breached her her duty to act solely solely to protect protect and advance advance the interest interest of of plaintiffs, plaintiffs, as her her clients. More More specifically, specifically, plaintiffs plaintiffs are claiming claiming Rekha Carozza Carozza acted acted to ensure ensure that that · clients. that Rekha . plaintiffs purchased th~ the ~roperty Property in order order to advance advance the interest interest of of her her mother-in-law, mother-in-law, RA RA pla}ntiffs purchased Carozza, whose whose -commission commission would would be earned earned only only if if the purchase purchase was consummated. consummated. Plaintiffs Plaintiffs Carozza, further claim claim that Rekha Rekha Carozza breached her duty to them them by failing failing to give give th~m them proper proper advice advice _Carozza breached further regarding the inspection, inspection, and by counseling counseling them them to enter enter into an agreement agreement that that allowed allowed Leach Leach regarding remain in possession possession of of the Property Property after after the closing, closing, which which effectively effectively l_imited limited their their ability ability to to remain proper walk-through walk-through prior prior to_ to closing. closing. In their their eighth eighth cause.of cause of action,.plaintiffs action, plaintiffs charge charge RA do a proper i, Carozza, Rekha Rekha Carozza Carozza and ProChek ProChek with with intentional intentional infliction infliction of of harm harm by causing causing them them to: (1) (I) Car.ozza, excess of of the Property's Property's fair market market value; value; (2) incur incur costs costs for repairing repairing the Defects; Defects; (3) pay: in excess · pay . expend expend time time arranging arranging for the repairs; repairs; and (4) be inconvenience~ inconvenienced while while living living through through the period period < of repairs. repairs. The The ninth ninth cause cause of of action action contains contains plaintiffs' plaintiffs' al allegations that, because because RA Carozza Carozza ' of legations that, Rekha Carozza Carozza each each had a fiduciary fiduciary relationship relationship with with them, them, they they each each had had a duty to protect protect and Rekha and advance advance plaintiffs' plaintiffs' interests, interests, yet elected elected to advance advance their their own own interests, interests, and those those of of each'. each and other, ahead ahead of of plaintiffs'. plaintiffs'. The tenth tenth cause cause of of action action contains contains plaintiffs' plainiiffs' allegations allegations that that ProChek ProChek · oth~r, breached its contract contract with with them them to conduct conduct a thorough thorough and comprehensive comprehensive inspection inspection of of the . breached Property, and to disclose disclose conditions conditions that that should should have have been been apparent apparent to a reasonable reasonable inspector. inspector. • Property, eleventh cause cause of of action action contains contains plaintiffs' plaintiffs' allegations allegations that ProChek ProChek performed performed the ·" The eleventh inspection in a negligent negligent manner, manner, and that it prepared report in a negligent negligent manner. manner. •·, inspection prepared its rep(?rt (" 5 ·--., \ .. _~-- ._._---' - ----_. --- ----------- ------ 5 of 17 - - - -- _ .. __.;,___ --·----- [*FILED: 6] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 '· Carozza and and Double Double C joined about September September 24, 2018, 2018, by seryice service of of RA Carozza joined issue on or about their joint joint answer answer with with affirmative affirmative defenses defenses and a cross cross claim claim against against Leach, Leach, ProChek ProChek and Keller Keller Williams for contribution contribution and indemnification. indemnification. The remaining remaining defendants defendants served served their their ~espective ~espective Williams pre. answer answer dismissal dismissal motions. motions. pr~ On a motion motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a) (7), the court court must must "accept "accept the facts as alle,ged plaintiffl:s] alleged in the ~omplaint complaint as true, accord accord plaintiffI s] the benefit benefit of of ev~ry every possible possible favorable favorable inference, and determine determine only only whether whether the facts as· as alleged alleged fit within within any any cognizable cognizable legal theory" theory" •. inference, Martinez, 84NY2d 84 NY2d 83, 87 - 88 [1994]). [1994]). Furthermore, Furthermore, a dismissal.pursuant dismissal. pursuant to CPLR CPLR (Leon v Martinez, 3211I (a) (I) (1) "is warranted warranted only only if if the documentary documentary evidence evidence submitted submitted conclusively conclusively establishes establishes a 321 . . ·; defense defense to the asserted asserted claims claims as a matter matter of of law" law" (id. at 88). Addressing Addressing the dismissal dismissal motion motion of of Rekha Rekha Carozza, Carozza, it is her her position position that that the complaint complaint fails to state a cause cause of of action action for legal malpractice. malpractice. The central central question question on a legal legal malpractice malpractice claim is whether whether the "attorney "attorney failed failed to exercise exerCise the ordinary ordinary reasonable reasonable skill and knowledge knowledge commonly possessed by a member prof~ssion which commonly possessed member of of the legal profession which results results in actual actual damages damages to a plaintiff' (Leder (Leder v Spiegel, Spiegel, 9 NY3d 836, 837'[2007], 837[2007], cert cert denied denied sub nom Spiegel Spiegel v Rowland, Rowland, . plaintiff' NY3d 8~6, sub nom . 552 US us 1257 [2008]). [2008]). Here, Here, Rekha Rekha Carozza Carozza criticizes criticizes the complaint complaint for . asserting asserting a series series of of bald bald legal ' . conclusions conclusions without without specifying: specifying: what what the advice advice was was that that she gave gave plaintiff plaintiff that that was was inadequate;. inadequate; advice she should should have have given given to plaintiffs; plaintiffs; a legal basis.for basis for claiming claiming that that her her permitting permitting ,;. what ~dvice plaintiffs enter into the post-closing agreement with Leach Leach was was a proximate proximate cause cause of of any of of . plaintiffs to enter post-closing agreement.with . I, ... '\ damages; and what_ what her specific specific conduct conduct was was that that proximately, proximately, or "but "but for," for," • their purported purported damages; . . them to·suffer to suffer damages. damages. Rekha Rekha Carozza Carozza supports supports her her motion motion with with copies copies of of the MLS MLS caused them 6 6 of 17 [*FILED: 7] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 listing sheet, the Contract, Contract, the amendment amendment to the Contract, Contract, and the post-closing post-closing possession possession listing agreement, and contends contends that that these these documents documents preclude preclude a fipding finding that that she was negligent negligent in agreement, performing her duties duties as their their attorney. attorney. Next, Rekha Carozza Carozza points points out out that that she is a real estate estate performing Next, Rekha attorney, not a home home inspector, inspector, and that she is, therefore, therefore, not responsible responsible for any failure failure on the attorney, part of of ProChek ProChek to uncover disclose the Defects. Defects. She also points points out out that, that, to the extent extent that that uncover and disclose part plaintiffs assert that that the Defects Defects either either came came about about during, during, or were were not not apparent apparent until until after, after, the plaintiffs assert six-day post-closing post-closing period, period, and that that Leach's Leach's presence presence in the Property Prope~y during during that that period made it period made six-day r difficult for them them to perform perform a thorough thorough walkthrough, walkthrough, their their assertions assertions lack lack merit.. merit. Aside Aside from the difficult fact that she ensured, ensured, as part part of of the post-closing post-closing agreement, agreement, that that plaintiffs plaintiffs had an opportunity opportunity to walkthrough before before taking taking possession, Rekha Carozza Carozza asserts asserts that that it is not possible possible do the final walkthrough possession, Rekha for the alleged alleged Defect~ Defects to have have only manifested manifested themselves themselves during during that six-day six-day period. period. for· Rekha Carozza Carozza also relies relies on the documents documents to demonstrate demonstrate that she advanced advanced plaintiffs' plaintiffs' Rekha interests by contractually contractually ensuring ensuring them them three three separate separate opportunities opportunities to inspect inspect the property, property, once once interests before executing executing the Contract, Contract, once once before before closing, closing, and once once before taking possession. possession. Next, before before taking Next, Rekha Carozza Carozza points points out that, although although Leach, Leach, as seller, seller, was statutorily statutorily entitled entitled to credit credit Rekha plaintiffs, as purchasers, $500.00, to forgo making making any representations representations regarding regarding the condition condition of of plaintiffs, purchasers, $500.00, Property (Real Property Property Law § S 465), 465), the documents documents prove prove that she negotiated, negotiated, and and obtained, obtained, the Property plaintiffs' behalf: behalf: (1) a representation representation by Leach Leach that: "the "the roof roof and basement on plaintiffs' basement [are] free from seepage, and all will be delivered delivered at Closing Closing ip ir the same same condition condition as when when first leaks and seepage, inspected by Purchaser(s), Purchaser(s), reasonable reasonable wear wear and tear tear exceptC?d," excepted," and that that plaintiff plaintiff shall shall have have the inspected "right to make make a final inspection inspection at any reasonable reasonable time, time, prior the closing" closing" (Cont~act (Contract Rider Rider ,r,r ~~ "right prior to the 20,21); escrow of of $2,000.00, $2,000.00, to cover cover any damages damages that that might might occur occur during during the six-days six-days 20, 21 ); (2) an escrow 7 7 of 17 [*FILED: 8] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 that Leach was permitted permitted to remain remain in the Property Property after after the closing; closing; and and (3) a reduction reduction in the purchase purchase price price from $309,200.00 $309,200.00 to $302,000.00. $302,000.00. This This she insists, insists, contradicts contradicts plaintiffs' plaintiffs' chief chief allegation against against her, namely, their interests interests in favor favor of of her protect their her mother-inmother-inallegation namely, that she failed to protect Carozza's interests interests and commission. commission. law RA Carozza's Lacking from Rekha motion papers papers is a copy of, or even reference to, a Lacking Rekha Carozza's Carozza's motion even a reference written retainer agreement agreement outlining outlining the terms conditions of of their relationship. their professional professional relationship. written retainer terms and conditions that Rekha Carozza's mother-in-law's compensation was, was, as plaintiffs allege, contingent contingent Given that Rekha Carozza's mother-in-law's compensation plaintiffs allege, on their their consummation consummation of of the sale, the omission omission of of the retainer retainer agreement agreement from the motion motion papers prohibits the Court Court from assessing assessing whether Carozza breached obligations papers prohibits whether Rekha Rekha Carozza breached any obligations under that agreement. agreement. While While the submitted submitted documents documents substantiate substantiate many of Rekha Carozza's many of Rekha Carozza's assertions, the omission omission of of the retainer document prevents Court from determining determining whether assertions, retainer document prevents the Court whether contains, or references, references, a conflict conflict waiver, other language language setting setting forth plaintiffs' plaintiffs' it contains, waiver, or other understanding acceptance of of how the relationship Carozza defendants defendants might might understanding and acceptance relationship between between the Carozza impact on their of the Property. question of of fact exists.as exists,as to whether whether their purchase purchase of Property. As a result, result, a question impact Rekha Carozza breached her duty to plaintiffs that is not conclusively resolved resolved by the the Rekha Carozza-breached plaintiffs that not conclusively documentary evidence evidence submitted submitted for review (CPLR 3211 [a] raj [1]). [I)). documentary review (CPLR Rekha Carozza breach of Plaintiffs' Plaintiffs' separate separate cause cause of of action action against against Rekha Carozza for breach of fiduciary fiduciary duty is, however, dismissed, their legal malpractice however, dismissed, as it is based based on the same same facts as their malpractice claim, claim, and and is therefore duplicative of of that claim. therefore duplicative that claim. Finally, Rekha Rekha Carozza plaintiffs' claim that she Finally, Carozza also seeks seeks an order order dismissing dismissing plaintiffs' claim that intentionally inflicted inflicted harm them (eighth (eighth cause cause of of action). action). The The elements elements of of this cause of of ·, intentionally harm upon upon them this cause action are: 8 8 of 17 [*FILED: 9] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 . . intentional infliction infliction of of harm; special damages; damages; (3) "(1) intentional harm; (2) which which results results in special without any excuse excuse or justification; series of of acts which which would would without justification; and ((4) 4) by an act or series otherwise lawful ... must have have been been solely otherwise be lawful ... The action action complained complained of of must solely motivated malice or disinterested disinterested malevolence, malevolence, and the plaintiffT must have have plaintif£I s] must motivated by malice suffered specific, specific, measurable measurable loss, which which requires allegation of of special special suffered requires an allegation damages" damages" (Kassab Kasab, 56 Misc Misc 3d 1213 [A], Sup Ct, Queens internal quotation marks (Kassab v Kasab, Queens County County 2017; 2017; internal quotation marks and citations citations omitted]). omitted]). To this end, Rekha Carozza argues argues that plaintiffs allegations of of fact notproffer proffer any allegations Rekha Carozza plaintiffs do not inferred that that her actions and/or and/or inactions solely motivated malice or from which which it can be inferred her actions inactions were were solely motivated by malice disinterested malevolence, without which state this this claim review of of the motion disinterested malevolence, without which they cannot cannot state claim .... A review motion papers confirms that, even even if if true, plaintiffs' of fact are inadequate state a cause cause of of plaintiffs' allegations allegations of inadequate to state papers confirms action for intentional of harm, harm, requiring requiring a dismissal dismissal of of this this claim, claim, as well as a dismissal dismissal action intentional infliction infliction of " / of a breach of fiduciary fiduciary duty claim. claim. The Court Court also notes of action action against against Rekha Rekha of breach of notes that the the cause cause of Carozza for intentional .infliction of of harm, (CPLR' 21 5). Carozza intentio~alinfliction harm, an intentional intentional tort, is time-barred time-barred (CPLR'2I5). Plaintiffs' causes of of action action against against ProChek of harm harm ((eighth Plaintiffs' causes ProChek are for intentional intentional infliction infliction of eighth of action), action), for breach of contract contract (tenth (tenth cause cause of of action) action) and for negligence cause of breach of negligence ((eleventh eleventh cause cause of action). contends that it is entitled entitled to a dismissal dismissal of of these statute of ~ction). ProChek ProChek contends these claims claims based based on: the statute . oflimitations, allegations actually actually sound sound in malpractice, three-year statute statute of of oflimitations, as the allegations malpractice, which which is a three-year limitations; limitation of of damages damages provision Home Inspection limitations; the limitation provision contained contained in the ProChek ProChek Home Inspection Contract (Inspection Contract); amount of of the Contract (Inspection Contract); and on plaintiffs' plaintiffs' rejection rejection of of its offer offer of of the full amount damages provision. contends that the pleading lacks the required specificity. damages provision. ProChek ProChek also also contends pleading lacks required specificity. Contract, dated executed by Andrew date of of the Andrew Maxwell Maxwell on the date The Inspection Inspection Contract, dated and executed inspection, June June 8, 2015, 2015, provides, provides, in relevant inspection, relevant part: 9 I I I I I 9 of 17 [*FILED: 10] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 I I j l 1 ' "PRO CHEK CHEK agrees agrees to conduct conduct an .inspection for the purpose "PRO purpose of of informing informing the major deficiencies property. The inspection customer customer of of major deficiencies in the condition condition of of the property. inspection and report are performed and prepared for the sole confidential and exclusive report performed prepared sole confidential and exclusive use use of the customer. customer. The written written report about report will include include information information about and possession possession of following: the following: The general general exterior exterior condition condition of of the structure, structure, including including roof, roof, gutter, gutter, chimney, The general general chimney, siding, siding, foundation, foundation, drainage drainage and grading. grading. The interior including ceilings, walls, floors, interior condition condition of of the structure, structure, including ceilings, walls, floors, windows, insulation and ventilation. condition of of electrical windows, insulation ventilation. The condition electrical and and mechanical systems, including main, main, circuit panel, branch branch circuits, circuits, mechanical systems, including circuit panel, septic, plumbing, hot water, water, hearing hearing and air-conditioning air-conditioning systems. septic, plumbing, systems. understood and agreed inspection will only include include readily readily accessible accessible It is understood agreed that this inspection areas of the building apparent conditions conditions areas of building and is limited limited to visual visual observations observations of of apparent existing at the time of the inspection concealed defects existing time of inspection only. Latent Latent and concealed defects and and deficiencies are excluded systems will deficiencies excluded from the inspection. inspection. Equipment, Equipment, items items and systems dismantled. Only Only non-intrusive not be dismantled. non-intrusive testing testing will be performed. performed. Maintenance Maintenance other items discussed, but they are not a part part of of our our inspection. inspection. The The and other items rimy may be discussed, report is not intended report assign responsibility intended to assign responsibility to any party party for replacement replacement or repairs of items inspected. inspected. repairs of items The parties agree the PRO CHEK CHEK and its employees employees and agents agents assume parties agree assume no liability or responsibility responsibility for the cost of repairing or replacing replacing any unreported unreported liability of repairing defects or deficiencies, either current future or for any property property defects deficiencies, either current or arising arising in the future nature. The inspection inspection and and damage, bodily injury of damage, consequential consequential damage damage or bodily of any nature. report are not intended intended as, or to be used as, a guarantee warranty, expressed report guarantee or warranty, expressed or implied, regarding adequacy, performance condition of implied, regarding the adequacy, performance or condition of any inspected inspected structure, item or system. system. PRO CHEK is not an insurer of any .inspected structure, PRO CJ-IEK insurer of inspected conditions. conditions. ** ** ** It is understood agreed that should should PRO CHEK and/or and/or its agents employees understood and agreed PRO CHEK agents or employees resulting from a failure perform any of be found liable liable for any loss or damages damages resulting failure to perform of its obligations, obligations, including but not limited to negligence, breach of contract, including limited negligence, breach of contract, otherwise, then the liability otherwise, then liability of of PRO CHEK and/or and/or its agents agents or or employees, shall PRO CHEK employees, shall be limited equal to the amount amount of of the fee paid by the customer limited to a sum equal customer for the inspection and report. report. inspection Acceptance and understanding of this agreement agreement are hereby acknowledge( dJ" hereby acknowledge(d]" Acceptance understanding of (ProChek notice of motion, exhibit C). (ProChek notice of motion, exhibit In New "(aJ clear clear contractual contractual provision provision limiting damages is enforceable enforceable abs~nt absent a New York, York, "[a] limiting damages ]0 10 10 of 17 [*FILED: 11] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 statutory prohibition, special relationship relationship between between the parties, parties, a statutory prohibition, or an overriding overriding public public policy, policy, which" is alleged Professional Engrs., Engrs., P.C., P.C., 40 none of of which" alleged here (Schietinger (Schietinger v Tatscher Tatscher Cronacher Cronacher Professional AD3d 2007] [internal [internal citations omitted]). "Moreover, "Moreover, while while a party AD3d 954, 955 [2d Dept Dept 2007] citations omitted]). party may may not not limit its liability damages caused caused by its own grossly grossly negligent conduct [ProChek's] [ProChek's] alleged alleged limit liability for damages n~gligent conduct conduct .its its inspection gross negligence" inspection does not rise to the level of of gross negligence" (id. at failure to properly properly conduct 956). Therefore, of liability enforceable against Therefore, while while the limitation limitation of liability provision provision is enforceable against plaintiffs plaintiffs on the damages, neither neither its inclusion nor plaintiffs' plaintiffs' rejection issue of of damages, inclusion in the Inspection Inspection Contract, Contract, nor rejection of of ProChek's of the inspection ($690.00), mandates answer ProChek's offer offer to refund refund the full amount amount of inspection fee ($690.00), mandates a pre answer dismissal complaint as against The only question question is which, of plaintiffs' plaintiffs' causes causes dismissal of of the complaint against it. The which, if if any any of of ProChek can proceed proceed to discovery plaintiffs' effort effort to recover recover damages damages from of action against against ProChek discovery in plaintiffs' $690.00. it, which which cannot cannot exceed exceed $690.00. Plaintiffs' of contract allegations that failed to contract claim claim is based based on their their allegations that ProChek ProChek failed Plaintiffs' breach breach of perform a complete, thorough and comprehensive inspection of Property, and failed perform complete, thorough comprehensive inspection of the Property, failed to disclose such conditions apparent to a reasonable reasonable and competent competent their report report all such conditions that would would be apparent disclose in their inspector. allegations, plaintiffs of contract claim, which inspector. By these these allegations, plaintiffs adequately adequately plead plead a breach breach of contract claim, which is subject limitations (CPLR 213), and survives the motion motion to dismiss. dismiss. The The subject to a six-year six-year statute statute of of limitations (CPLR 213), survives the ProChek, barred barred by the three-year three-year statute limitations applicable claim is not, as argued argued by ProChek, statute of oflimitations applicable to non medical medical malpractice malpractice actions action actions (CPLR (CPLR 214 [6]). Plaintiffs' Plaintiffs' remaining remaining two two causes causes of of action against it (negligence (negligence and intentional of harm) statute of of against intentional infliction infliction of harm) are barred barred by the the three-year three-year statute limitations, and are also subject subject to dismissal of the breach of limitations, dismissal on the basis basis that that they are duplicative duplicative of breach of contract claim. contract claim. As to that aspect of ofProChek's seeks a dismissal dismissal of of the RA Carozza Carozza and ProChek's motion motion that seeks that aspect 1I 11 11 of 17 [*FILED: 12] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 Double C's C's cross cross claim claim against against it for contribution contribution and indemnification indemnification in the the event event plaintiffs plaintiffs Double obtain judgment against obtain a verdict verdict or judgment against them, them, the motion motion is granted granted as to indemnification indemnification and denied denied contribution. as to contribution. F I '. pertains to ProChek, ProChek, the cross cross claim claim specifically specifically charges charges it with with causing causing or As it pertains contributing, in whole whole or in part, part, to the injuries injuries and damages damages allegedly allegedly sustained sustained by plaintiffs plaintiffs to contributing, extent that that such such injuries injuries and damages damages occurred occurred due to the culpable culpable conduct, conduct, recklessness, recklessness, the extent breach of of contract, contract, negligence negligence or other other fault fault of of these these co-defendants, co-defendants, without without any fault fault or breach negligence RA Carozza negligence on the part part of ofRA Carozza and Double Double C. To the extent extent that RA Carozza Carozza and Double Double C seek seek recovery recovery from from ProChek ProChek based based upon the owed to plaintiffs, plaintiffs, and a breach breach of of that duty duty contributed contributed to plaintiffs' plaintiffs' alleged alleged injuries, injuries, they duty it owed adequately state a cross cross claim claim for contribution contribution (see Razdolskaya Lyubarsky, 160 AD3d AD3d 994, 994, adequately Razdolskaya v Lyubarsky, Dept 20 I18] [internal citations citations omitted]). omitted]). On this this issue, issue, the Appellate Appellate Division, Division, Second Second 8] [internal 997 [2d Dept Department stated stated that: "[a]n "[a]n essential essential requirement requirement for contribution contribution is that that the parties parties must must have have Department contributed to the same same injury injury [and] that that [c]ontribution [c]ontribution is available available whether whether or not not the the culpable culpable contributed parties are allegedly allegedly liable liable for the injury injury under under the same or different different theories" theories" (id.). Here, Here, cross cross paryies claimants Carozza and Double Double C. C,. as well as ProChek, ProChek, Leach, Leach, Rekha Rekha Carozza Carozza and and KeJler Keller claimants RA Carozza . Williams, are alleged alleged to have have caused caused the same same injury injury to plaintiff, plaintiff, that being being plaintiffs' plaintiffs' payment payment Williams, for the Property Property in excess excess of of its fair market market value, value, as well as the costs·, costs', time time and inconvenience inconvenience associated associated with with repairing repairing the Defects. Defects. RA Carozza Carozza and Double Double C do not, however, however, state state a cross cross common-law indemnification, indemnification, requiring requiring its dismissal, dismissal, as the cross cross claim claim lacks lacks claim for common-law allegations that that ProChek ProChek owed owed a contractual, contractual, or other other duty, to RA Carozza Carozza and/or and/or Double Double C (id.). allegations With respect respect to Keller Keller Williams, Williams, plaintiffs' plaintiffs' charge charge Keller Keller Williams, Williams, via via four four somewhat somewhat With 12 "- 12 of 17 [*FILED: 13] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 intertwined and duplicative duplicative causes causes of of action, action, with with unjust enrichment, and with intertwined unjust enrichment, with negligence negligence and bre_ach of honest with with the general public, by producing producing the MLS MLS listing breach of its duty duty to be honest general public, listing for the Property, that includes includes misrepresentations abou!.the condition condition of of the Property. Property. The offending offending Property, misrepresentations about.~he conditions, which allegedly failed to disclose disclose and/or and/or actively actively concealed, concealed, were the conditions, which Keller Keller Williams Williams allegedly water and mold damage damage in the interior interior of of the house. house. water While long adhered adhered to the doctrine doctrine of of caveat caveat emptor emptor in an arm's arm's iength iength While New New York York has long property transfer, real property transfer, imposing imposing "no "no liability liability on the seller seller or the seller's seller's agent agent to disclose disclose any information concerning concerning the premises premises ... ... unless there is some some conduct conduct on the part of the seller seller or or information unless there part of which constitutes Ruzzine, 147 AD3d AD3d 1456, the seller's seller's agent agent which constitutes active active concealment" concealment" (Gallagher (Gallagher v Ruzzine, [internal quotation quotation marks citation omitted]), omitted]), New enacted 1459 [2d Dept 2017] 2017] [internal marks and citation New York York has has enacted statutory law (see Real Property coddying a selJei's seller's disclosure disclosure obligations obligations for statutory Property Law Article Article 14) codifying certain residential seller's obligation obligation to provide certain residential real property property transfers," transfers," that being being the seller's provide a fairly Property Law Law§S 462 [1], [2]). comprehensive disclosure disclosure statement statement about about the property comprehensive property (see Real Property Article 14 also also provides of delivering delivering the disclosure disclosure statement, statement, a seller seller can can opt opt to provides that, in lieu of Article credit $500.00 $500.00 against against the agreed agreed upon upon purchase of the residential (Real credit purchase price price of residential real property property (Real Property S465 [1 [1]), which is what what Leach chose to do in this instance. instance. Property Law §465 ]), which Leach chose With respect Williams, it is plaintiffs' contention that, as the listing listing agent, agent, it respect to Keller Keller Williams, plaintiffs' contention repairs and/or made by Leach Leach to obscure that was aware aware of of the superficial superficial repairs and/or efforts efforts made obscure the Defects, Defects, and that and/or negligently of fact when it purposefully purposefully and/or negligently made made misrepresentations misrepresentations of when it published published the MLS MLS listing for the Property only failed to disclose disclose such conditions, conditions, but made implicit listing Property that that not only made implicit representations that the Property Property was in a reasonably reasonably good, which it representations that good, safe and livable livable condition, condition, which was not. Plaintiffs Plaintiffs further further allege allege that that Keller Keller Williams Williams benefitted benefitted from its misrepresentations misrepresentations and 13 13 of 17 [*FILED: 14] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 was unjustly enriched when, when, in reliance they paid than they they unjustly enriched reliance upon upon the misrepresentations, misrepresentations, they paid more more than of the true of the Property. true condition condition of Property. should have, have, in light light of Keller Williams contends that of action action lack merit, Keller Williams contends that the causes causes of merit, in that: plaintiffs' plaintiffs' allegations are contradicted clear terms Contract; it did not owe allegations contradicted by the clear terms of of the Contract; owe plaintiffs plaintiffs a duty to use to impart accurate information, impart accurate information, and it was not reasonable reasonable for them them to rely upon upon the information in the MLS listing; allegations sound sound in fraud and/or and/or information listing; and to the extent extent the allegations misrepresentation, specificity requirements ofCPLR 3016 (b). CPLR 3016 misrepresentation, they do not not meet meet the pleading pleading specificity requirements of Upon review review of not include include allegations Upon of the complaint, complaint, the Court Court finds finds that it does not allegations from which it can be construed special relationship relationship with, were in privity with, construed that that plaintiffs plaintiffs had a special with, or w~re privity with, Keller Williams, Williams, a prerequisite imposing liability event of of a breach of a duty prerequisite for imposing liability on it in the event breach of flowing from that flowing that relationship. relationship. Furthermore, allegations of misrepresentation, fail Furthermore, the allegations of misrepresentation, misrepresentation, or negligent negligent misrepresentation, because executed by plaintiffs 2015, contains contains an because the Contract Contract executed plaintiffs and Leach Leach on July July 10, 2015, acknowledgment that Leach $500.00 credit, credit, rather rather than acknowledgment that Leach was providing providing plaintiffs plaintiffs the $500.00 than a property property condition statement, and because contains a merger clause that states as follows. follows. condition disclosure disclosure statement, because it contains merger clause that states \ "Purchaser is relying solely upon inspection of of the premises "Purchaser relying solely upon Purchasers' Purchasers' personal personal inspection premises and/or inspections made on Purchasers' laboratories, home home and/or inspections made Purchasers' behalf behalf by engineers, engineers, laboratories, inspection services, termite acknowledges that inspection services, termite and pest pest inspectors, inspectors, etc. Purchaser Purchaser acknowledges that Purchaser agrees title to the premises 'as is' is' Purchaser agrees to accept accept title premises with with the property property in its 'as condition and that that this provision strictly construed. that condition provision will be strictly construed. Purchaser Purchaser agrees agrees that contract, Purchaser of the for the purposes purposes of of this contract, Purchaser has not relied relied upon upon any of statements made Seller and that except specifically set forth in the except as specifically the statements made by the Seller Contract of Sale, no representations, warranties or guarantees have been representations, warranties guarantees have been made made to Contract of acknowledges that Purchaser the Purchaser. Purchaser. Purchaser Purchaser acknowledges Purchaser shall have have no recourse recourse to the Seller Seller for any conditions conditions in the property property or at the property property which which are discovered Purchaser after the delivery of the deed deed to be conveyed conveyed hereunder h~reunder discovered by Purchaser delivery of representations of of Seller Seller .shall shall be deemed deemed to and any and all representations ~o be ~erged ~e~ged 111 m the the delivery of of the deed deed and shall not survive survive the closing. clos1l1g. ThIS shall This provlSlOn prov1s10n shall delivery similarly be strictly strictly construed" construed" similarly 14 14 of 17 [*FILED: 15] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 (Contract ~ 337). (Contract 7). Keller Keller Williams Williams also also contends extent plaintiffs allege misrepresentation and/or contends that, to the extent plaintiffs allege misrepresentation and/or causes of of action of a claim claim sounding sounding in fraud fraud fraud, the causes action are inadequately inadequately pleaded. pleaded. The elements elements of omission of false and kno~ "are a misrepresentation misrepresentation or a material material omission of fact which wh_ich was false kno~ to be false by defendant, made made for the purpose inducing the other upon it, justifiable defendant, purpose of of inducing other party party to rely relyupon justifiable reliance reliance of of other party misrepresentation or material injury" (Orlando (Orlando v Kukielka, the other party on the misrepresentation material omission, omission, and injury" Kukielka, Depot 2007]). 2007]). 40 AD3d AD3d 829, 831 [2d Depot CPLR 3016 3016 (b) provides: "[W]here a cause cause of of action action or defense CPLR provides: "[W]here defense is based based upon upon misrepresentation, misrepresentation, fraud, mistake, mistake, wilful wilful default, default, breach breach of of trust trust or undue undue influence, influence, the circumstances constituting constituting the wrong stated in detail." detail.'" 1 Here, circumstances wrong shall be stated Here, plaintiffs plaintiffs offer offer little little other than claiming that, because listing agent factual detail other than claiming because Keller Keller Williams Williams was the listing agent and and its , employee, Wei!, of the various -. employee, Weil, visited visited the Property, Prope1ty, it knew knew of various Defects, Defects, and knowingly knowingly made made i misrepresentations about the condition of the Property inducing the general general misrepresentations about condition of Property for the purpose purpose of of inducing public to rely on them. them. These These allegations -little mote more than than conjecture, and lack lack the public allegations constitute constitute .little conjecture, and factual assertions assertions about about what ·...necessary necessary factual what Keller Keller Williams Williams knew knew about about the Defects Defects at the time time it list~d the Property, Property, and what steps infonnation, to state state a claim claim for and about about what steps it took hide the information, misrepresentation and/or negligent mi;representation and/or negligent misrepresentation misrepresentation and/or and/or fraud. Inasmuch plaintiffs' claim claim against Inasmuch as plaintiffs' against Keller Keller Williams Williams for unjust unjust enrichment enrichment is premised. premised. allegations as underlie of their subject to on the same allegations underlie the balance balance of their causes causes of of action, action, which which are subject , The heightened pleading standard standard is required facts s,upp~rting s,upporting the heightened pleading required unless unless the fa_cts ~he cause cause of. of_ action "are "are peculiarly charged with fraud" · or mis~epresentatlOn action peculiarly within within the knowledge knowledge of of the party paity charged wit~ fraud m1s~epresentat10n (Plude man v Northern 491 [2008] [2008J [mternal [mternal quotat10n quotatIOn marks (Pludeman Nortl1ern Leasing Leasing Sys. Inc., 10 NY3d NY3d 486, 486,491 marks and and citation omitted]), omitted]), which claimed by plaintiffs. plaintiffs. citation which is not not claimed 1 15 15 of 17 [*FILED: 16] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 dismissal on CPLR CPLR 3211 (a) (1) and (7) grounds, grounds, that claim, claim, like RA Carozza Carozza and C's dismissal and Double Double C's claim for contribution, contribution, also does survive dismissal. dismissal. The Court's cross claim does not survive Court's finding finding that that Keller Keller Williams liable to plaintiffs defeats a cross claim asserted asserted aaainst against Wllliams is not liable plaintiffs necessarily necessarily defeats cross claim it for either either . e contribution or indemnification indemnification (see Tapinekis Tapinekis v Rivington Care Facility, contribution Rivington House House Health Health Care Facility, 17 AD3d AD3d 572,574 572, 574 [2d Dept Dept 2005]). 2005]). Accordingly, Accordingly, it is ORDERED motion of Rekha Carozza Carozza is granted that the ORDERED that the motion of defendant defendant Rekha granted to the extent extent that breach of of fiduciary infliction of of harm harm are causes of of action action sounding sounding in breach fiduciary duty and intentional intentional infliction causes dismissed as against against said defendant, defendant, and the motion otherwise, denied; denied; and and it is further further dismissed motion is otherwise, ORDERED that motion of of defendant defendant HomeChek Services, Inc., sued HomeChek Real Estate Estate Services, sued ORDERED that the motion herein Home Inspection Inspection Services, Services, Inc. d/b/a herein as Prochek Prochek Home d/b/a ProChek ProChek is granted granted to the extent extent that that the causes of of action action sounding sounding in negligence intentional infliction infliction of of harm dismissed as negligence and intentional ham1 are dismissed causes against said defendant, defendant, and the cross cross claim claim for indemnification indemnification is dismissed dismissed as against against against said defendant, and the motion otherwise denied; denied; and it is further further defendant, motion is otherwise ORDERED that granted and of defendant defendant Keller Keller Williams Williams Realty Realty Partners Partners is granted ORDERED that the motion motion of claims and cross cross claims claims are severed severed and dismissed dismissed as against against said defendant; defendant; and it is further further all claims ORDERED that Carozza and HomeChek Services, Inc., ORDERED that defendants defendants Rekha Rekha Carozza HorneChek Real Real Estate Estate Services, Home Inspection Inspection Services, Services, Inc. d/b/a d/b/a ProChek, directed to serve serve sued herein herein as Prochek Prochek Home ProChek, are directed answers to the Complaint Complaint within service of of a copy of this order order with notice copy of notice of of entry; answers within 20 days after after service further and it is further (. L ORDERED that counsel for plaintiffs defendants are directed directed to appear appear ORDERED that counsel plaintiffs and the remaining remaining defendants 16 - 16 of 17 [*FILED: 17] WESTCHESTER COUNTY CLERK 02/04/2019 03:35 PM NYSCEF DOC. NO. 65 INDEX NO. 60584/2018 RECEIVED NYSCEF: 02/04/2019 conference in room room 811, 111 III Dr. Martin Martin Luther Luther King, King, Jr. Blvd., Blvd., White White Plains, Plains, for a preliminary preliminary conference :1 New York on' Monday, Monday, February February 25, 25,2019, 9:30 a.m. New 2019, at 9:30 constitutes the decision decision and order order of of the Court Court This constitutes New York · Dated: Dated: White White Plains, Plains, New York .,, January'g, 2019 January''S1)2019 1 ENTER: ENTER: 1)~'~(;jr YID F. EVERETT, HON. HON. DA DAVID EVERETT, J.S.C. J.S.C . Electronically ·. Filed Electronically Hilpert Law Offices Offices · Th~ Hilpert Daniels, Porco Porco and Lusardi, Lusardi, LLP Daniels, Voute Lohrfink Magro Magro & McAndrew, McAndrew, LLP '. V mite Lohrfink Rivkin Radler Radler, , Rivkin Law Offices Offices of of Lori D. Fishman Fishman /i 17 17 of 17

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