Privilege Underwriters Reciprocal Exch. v Boniello Land & Realty, Ltd.

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Privilege Underwriters Reciprocal Exch. v Boniello Land & Realty, Ltd. 2019 NY Slip Op 34775(U) August 21, 2019 Supreme Court, Westchester County Docket Number: Index No. 69060/2016 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 To commence commence the the statutory statutory time time period period for appeals appeals of right right (CPLR (CPLR 551 5513(aJ), you are advised to serve serve a copy copy 3 [a]), you are advised as of of order, with with notice notice of of entry, entry, upon parties. of this order, upon all parties. SUPREME COURT COURT OF OF THE THE ST STATE OF NEW NEW YORK YORK SUPREME ATE OF COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ----------------------------------------------------------------------------X ----------------------------------------------------------------------------)( PRIVILEGE UNDERWRITERS UNDERWRITERS RECIPROCAL RECIPROCAL PRIVILEGE EXCHANG};, E)(CHANGE, as subrogee subrogee of of TRION TRION AND AND COLLEEN COLLEEN JAMES, JAMES, Plaintiff, Plaintiff, -against-against- DECISION & ORDER ORDER DECISION Motion for On Motion Summary Judgment Judgment Summary Index No.: 69060/2016 69060/2016 Index Sequence No.22 Sequence No. BONIELLO LAND LAND & REALTY, REALTY, LTD., LTD., BONIELLO BONIELLO BONIELLO DEVELOPMENT DEVELOPMENT CORP. CORP. and and BONIELLO BONIELLO EQUITIES EQUITIES LLC, LLC, Defendants. Defendants. -----------------------------------------------------------------------------X -----------------------------------------------------------------------------)( WOOD,J. WOOD,J. New York York State Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers 69-93, were were New State Courts Numbers 69-93, read in connection connection with with the motion motion for summary defendants Boniello Boniello Land Land & summary judgment judgment by defendants Realty Ltd., ("Boniello ("Boniello Land"), Land"), Boniello Boniello Development Development Corp. ("Boniello ("Boniello Development"), Development"), and Realty Boniello Equ::ies Equ~:ies LLC, LLC, ("Boniello ("Boniello Equities"). Equities"). Plaintiff, Plaintiff, Privilege Privilege Underwriters Underwriters ("PURE") ("PURE") as Boniello subrogee of of Trion Trion and Coleen Coleen James James ("homeowners"), ("homeowners"), commenced commenced this this action action to recover recover monies monies subrogee homeowners pursuant insurance policy, damages arising arising after after a claimed claimed it paid to the homeowners pursuant to an insurance policy, for damages water loss at the homeowner' homeowner's s residence residence at 65 Middle Middle Patent Patent Road Road in Bedford Bedford ("the ("the premises") premises") water 2014. in 2014. NOW, based based on the foregoing, foregoing, the motion motion is decided decided as follows: follows: NOW, It is well settled that "a "a proponent proponent of of a summary summary judgment motion must must make make a prima prima settled that judgment motion showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to judgment as a matter facie showing 1 [* 1] 1 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d demonstrate 320,324 [1986];; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686320, 324 [1986] Dept 2007]; 2007]; see also Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Once Once the movant movant 687 [2d Dept threshold burden, burden, the opposing opposing party party must must present present the existence existence of of triable triable issues issues of of has met this threshold Zuckerman v New New York, York, 49 NY2d NY2d 557, 557, 562 [1980] [1980];; see also Khan Khan v Nelson, AD3d fact (see Zuckerman Nelson, 68 AD3d Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will will not suffice suffice to defeat defeat a motion motion 1062 [2d Dept summary judgment (Barclays Bank Bank of of New New York, N.A. v Sokol, Sokol, 128 AD2d AD2d 492 [2d Dept Dept for summary judgment (Barclays pary opposing opposing a motion motion for summary summary judgment of deposition judgment may do so on the basis basis of deposition 1987]). A pary testimony as well as other other admissible admissible forms of of evidence, evidence, including including an expert' expert's s affidavit, affidavit, and testimony eyewitness testimony testimony (Marconi (Marconi v Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding deciding a motion motion eyewitness required to view view the evidence evidence presented "in the light light most most for summary summary judgment, judgment, the court court is required presented "in favorable to the party opposing the motion motion and to draw draw every every reasonable reasonable inference inference from the favorable party opposing pleadings proof submitted submitted by the parties favor of of the opponent opponent to the motion" motion" (Yelder (Yelder pleadings and the proof parties in favor Walters, 6411 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009] 2009];; see Nicklas Tedlen Realty Realty Corp., Corp., 305 AD2d AD2d Nicklas v Tedlen v Walters, 385,386 Dept 2003]). 2003]). The court court must must accept accept as true the evidence evidence presented presented by the 385, 386 [2d Dept nonmoving party must deny the motion "even arguably arguably any doubt doubt as to the nonmoving party and must motion if there is "even existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); 2005]); Baker Baker v existence Briarcliff School School Dist., Dist., 205 AD2d 652,661-662 [2d Dept Dept 1994]). Moreover, Moreover, issue issue finding, finding, as Briarcliff AD2d 652,661-662 opposed to issue issue determination, determination, is the key to summary (Krupp v Aetna Aetna Life & Cas. opposed summary judgment judgment (Krupp AD2d 252, 252, 261 [2d Dept Dept 1984]). Summary Summary judgment drastic remedy remedy and should should not judgment is a drastic Co., 103 AD2d be granted granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez (Alvarez v Prospect Prospect Hospital, 68 NY2d NY2d 320,324 320,324 [1986]). [1986]). Hospital, 2 [* 2] 2 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 According to the Summons Summons and Complaint, Complaint, defendants defendants constructed constructed the premises, According premises, including including the inspection, inspection, installation installation and construction construction of of the shower shower pan and related related component component parts, installation of of roof roof venting, venting, insulation insulation and waterproofing waterproofing systems. systems. During During the parts, and installation construction construction of of the home, home, and prior prior to May 12, 2016, 2016, defendants defendants failed failed to properly properly install install the shower pan and related related component component parts, waterproofing or placing cement board shower parts, by not waterproofing placing a cement board behind behind of a seat/shelf seat/shelf located located within within the shower, shower, causing causing water water leaks leaks throughout throughout the premises, premises, the tile of resulting water water leak caused caused substantial substantial damages damages to the homeowners' homeowners' real and and personal personal and the resulting property. Following Following the water water leaks, leaks, pursuant pursuant to its obligation obligation under under its policy policy of of insurance, insurance, property. PURE paid homeowners for their their loss and damage damage to their their real and personal personal property, PURE paid the homeowners property, and now seeks that payout payout to be paid paid by the tortfeasors. tortfeasors. now Defendants argue argue that that they are not liable liable for the homeowner's homeowner's losses. losses. In support of their their support of Defendants motion for summary summary judgment, defendants offer offer the affidavit affidavit of of Gus Boniello, Boniello, who represents represents motion judgment, defendants following: Gus Boniello Boniello is an officer officer of of Boniello Boniello Land, Land, which which performs performs residential residential the following: construction. He is also familiar familiar with with Boniello Boniello Development Development as he was was the the past president of of that that construction. past president entity, which which also performed performed residential residential construction. construction. He is also familiar familiar with with Boniello Boniello Equities, Equities, entity, member of of that that entity, entity, which which is the buys and sells sells and rents rents properties. Boniello further further as he is a member properties. Boniello attests that he is familiar familiar with with the premises, premises, which which is a single family residence. residence. Boniello Boniello Land Land attests single family purchased the· the' property 2009, a new house house had been been completely completely framed, framed, and and none none of purchased property in 2009, of defendants at that that point point had framed framed out the new structure. structure. To complete complete the house, house, Boniello Boniello Land defendants hired plumbers, plumbers, electricians, electricians, roofers roofers and others. others. The subcontractors subcontractors work work was was reviewed reviewed either either hired Boniello or one of of his brothers, direct the particular particular sub-contractor sub-contractor in the brothers, but they did not direct by Gus Boniello manner which which they performed performed their their work. work. He did not observe observe the work work done done at the master master bath. manner Following the completion completion of of the construction construction of of the house, house, the Town Town of of Bedford Bedford conducted conducted an Following 3 [* 3] 3 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 inspection inspection and issued issued a Certificate Certificate of of Compliance Compliance on October October 14, 2011 for a Certificate Certificate of of Occupancy. After After the completion completion of of the house, house, Boniello Boniello Land Land sold the house house to Boniello Boniello Occupancy. Equities, Equities, which which then then listed listed the house house for sale or rent. The The house house was rented rented for approximately approximately two years, years, during which time time the renter renter did not make make any complaints during which complaints to any of of the Boniello Boniello entities concerning concerning any issues issues with with the residence. residence. At the end of of the rental rental period house was period the house entities March 11, 2014, 2014, Boniello Boniello Equities Equities and the homeowners homeowners entered entered into a listed for sale. On March residential contract contract of of sale regarding regarding the premises ("the Contract", NYSCEF Doc. No. 73). The premises ("the Contract", NYSCEF No. 73). residential Contract permitted homeowners as purchasers purchasers to conduct conduct an inspection inspection of of the residence residence prior prior Contract permitted the homeowners to purchase None purchase and further further indicated indicated that that the purchasers purchasers were were purchasing purchasing the property property "as "as is". is". None of the Boniello Boniello entities entities had entered contract with with the homeowners homeowners to build build and develop develop of entered into any contract residence at the property. property. The closing closing was held on April April 1, 1,2014. a new residence 2014. The homeowners homeowners claim claim that they had problems problems with with the premises premises almost almost immediately. immediately. Trion James James noticed noticed a leak leak in the ceiling ceiling of of the kitchen kitchen pantry,.and observed dripping. dripping. James James pantry,.and observed Trion contacted his insurance insurance company, company, which which responded responded by sending sending an adjuster adjuster to inspect inspect the home. home. contacted PURE retained retained origin origin and cause cause expert expert Michael Michael Walsh Walsh (forensic engineering consultant), consultant), to PURE (forensic engineering investigate th~ th~ source of the water water damage damage throughout throughout the home. home. Walsh Walsh found found that that both both the investigate source of original leak which which started started in the master master bathroom bathroom before before spreading pantry below, below, and the original spreading to the pantry damage to the wooden wooden floors floors in the game game room, room, were the result result of of the home home's' s poor construction. poor construction. damage Specifically, the shower shower pan master bathroom bathroom shower shower had been been improperly improperly installed, installed, and Specifically, pan for the master short, allowing allowing water water to seep into the mortar mortar joints. Without any flashing flashing membrane membrane was too short, joints. Without behind it, the water water was able to infiltrate infiltrate the mortar mortar and leak. leak. Walsh Walsh observed observed that that the leak and behind water danfo.ge dan~age would would not have occurred shower bench bench seat been installed installed with with solid solid the water occurred had the shower seat been waterproofing membrane membrane placed placed behind behind it. waterproofing 4 [* 4] 4 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 Also, damage damage was found to be the result result of of improper improper construction construction of of the roof. Ice Also, damming was occurring occurring under under the roof roof and soffit soffit located located immediately immediately above above the damaged damaged area. damming ~-~. Water appeared appeared to be entering through the closet closet and moving moving under under the finished finished wood wood in the Water entering through larger room. It was surmised surmised that that had the ro~f ro~f been properly vented vented and adequate adequate external external air larger been properly flow permitted, permitted, the ice damming would not not have damming condition condition and subsequent subsequent water water damage damage would have occurred. occurred. Initially, the record record fails to support support any involvement involvement by Boniello Boniello Development Development with Initially, with the building of of the home. home. Gus Boniello' Boniello's s affidavit affidavit reflects reflects that Boniello Boniello Development Development had no role role in building ownership or building of the residence residence after after the property property was purchased purchased by Boniello Boniello Land in ownership building of 2009 (Affidavit (Affidavit of of Gus Boniello, Boniello, NYSCEF 71). Accordingly, Accordingly, summary summary judgment NYSCEF Doc No. 71). judgment is granted to Boniello Boniello Development Development Corp., Corp., and the complaint complaint and and any and all cross cross claims claims against against it granted dismissed as well. well. are dismissed remaining defendants, defendants, they argue that that PURE's PURE's cause cause of of action action for negligence negligence As for the remaining should dis:nissed, as none none of of the Boniello Boniello entities entities owed owed a duty to the homeowners. homeowners. In order order to should be dis;nissed, prevail on a negligence negligence claim, claim, "a plaintiff plaintiff must must demonstrate owed by the defendant defendant to prevail demonstrate (1) a duty duty owed thereof, and (3) injury injury proximately resulting therefrom" therefrom" (Pasternack (Pasternack v. the plaintiff, plaintiff, (2) a breach breach thereof, proximately resulting of Arn. Am. Holdings, Holdings, 27 NY3d NY3d 817, 825, 825, [2016]). [2016]). Lab. Corp. of addition, as relevant relevant here here to In addition, Boniello Equities, Equities, a simple breach of contract is not to be considered considered a tort tort unless unless a legal duty Boniello simple breach of contract independent of of the contract contract itself itself has been been violated violated (Kallman (Kallman v Pinecrest Pinecrest Modular Modular Homes, Homes, Inc., independent 81 AD3d69i'[2dDept2011]). AD3d 69i"[2d Dept 2011]). 81 record shows shows that that defendants made a prima prima facie case case for entitlement entitlement to summary summary The record defendants made judgment there is no duty of of defendants defendants to the homeowners. homeowners. In opposition, opposition, PURE PURE offers offers no judgment as there competent proof proof that that a duty exists, exists, and has not raised raised a triable triable issue issue of of fact. The The record record shows shows competent 5 [* 5] 5 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 that the homeowners homeowners did not enter enter into a contract contract with with any of of the defendants defendants to build home. build a home. Boniello Equity, Equity, which which was a party party to the Contract Contract with with the homeowners homeowners for the sale of of the Boniello premises, was not in the business business of of building building homes homes but was in the business business of of buying, selling, premises, buying, selling, renting of of properties. properties. Notably, homeowners had no dealing dealing with with any of of defendants defendants until Notably, the homeowners and renting the Contract Contract of of Sale was signed signed at the closing, closing, and a Certificate Certificate of of Occupancy Occupancy for the premises premises issu;:d in 2011. 2011. In the absence absence of of a duty, duty, as a matter matter of of law, law, there there can can be no liability liability had been issux! (Pasternack v Lab. Corp. of of Am. Holdings, Holdings, 27 NY3d 817, 825 (2016). (2016). Under Under these these (Pasternack NY3d 817, circumstances, there there has been been no showing showing that any of of the defendants defendants owed owed a legal duty duty to the circumstances, homeowners, and thus this cause cause of of action action is dismissed. dismissed. homeowners, PURE'ss cause cause of of action action against against defendants defendants for breach breach of of warranties, warranties, General General As for PURE' Business Law Law §777-a, s777-a, provides housing merchant merchant warranty warranty is implied implied to new new homes homes to Business provides that a housing protect new new o'wners OWnersfrom negligence of of the home's home's builders contractors. Specifically, Specifically, builders and contractors. protect from the negligence of a new new home home is subject subject to a housing housing merchant merchant implied implied warranty, warranty, shall shall survive survive the each sale of passing of of title. The statute statute reads: passing I. A housing housing merchant merchant implied implied warranty warranty shall mean mean that: 1. year from and after after the warranty warranty date, date, the home home will be free from defects defects due (a) for one year been constructed constructed in a skillful skillful manner; manner; to a failure to have been after the warranty warranty date, date, the plumbing, plumbing, electrical, electrical, heating, heating, (b) for two years from and after cooling, and ventilation ventilation systems systems of of the home home will be free from defects defects due due to a failure failure by the cooling, builder to have installed installed such systems in a skillful skillful manner; manner; and builder such systems years from and after after the warranty warranty date the home home will will be free from material material ((c) c) for six years defects. (GBL §777-a). s777-a). defects. 6 [* 6] 6 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 The statute statute defines defines "warranty "warranty date," date," the date the warranty warranty period period begins, begins, as the "date "date of of the passing passing of such owner of title title to the first owner owner for occupancy occupancy by such owner or such such owner's owner's family family as a residence, residence, or the date of of first occupancy occupancy of of the home home as a residence, residence, which which ever ever first occurs" occurs" 9777[8]). (GBL §777[8]). six-year warranty Contrary Contrary to PURE's PURE's contention, contention, the six-year warranty period period in the limited limited warranty warranty is inapplicable, inapplicable, since since the defects defects alleged alleged in the complaint complaint do not relate relate to a "major "major structure," structure," m In affect the building(s) load-bearing functions functions to the extent extent that that any if if that they do not affect building(s) load-bearing homeowners' home home became unsafe, unsanitary, unsanitary, or otherwise otherwise unavailable unavailable (GBL (GBL §777[4]). 9777[4]). PURE PURE homeowners' became unsafe, complains complains of of alleged alleged defects defects to the installation installation of of a shower shower pan pan and and seat seat in a shower shower and the failure to install install roof roof venting venting or water water venting venting above above the garage. garage. Therefore, Therefore, PURE PURE may only avail itself itself of of either either the one-year one-year or two-year two-year warranty warranty period period in the limited limited warranty warranty (Finnegan (Finnegan v Brooke Brooke Hill, LLC, 38 AD3d AD3d 491 491,, 492 [2d Dept Dept 2007]). 2007]). PURE contends contends that that since since the passing passing of of title did not occur occur until until June June 11 11,2014, when the , 2014, when PURE signed, they are within within the two year warranty warranty period period for their their claim claim with with respect respect to the deed was signed, plumbing system. Defendants Defendants claim claim very unconvincingly unconvincingly that that the contract contract called called for a closing closing plumbing system. of April April 1, 2014 2014 (Gus (Gus Boniello Boniello affidavit affidavit at paragraph Christopher Walsh Walsh Affirmation Affirmation at date of paragraph 7, Christopher paragraph [states incorrectly incorrectly that the closing closing was held held April April 1, 2014]). 2014 D. In fact, fact, a closer closer look look paragraph 16 [states "Purchaser's s Rider Rider to Contract Contract of of Sale", Sale", at paragraph Q(v) states: "Modifying provision at the "Purchaser' paragraph Q(v) states : "Modifying provision of Contract Contract of of Sale: Closing Closing date shall be 'on 'on or about about May May 1, 1,2014.'" Defendants' no. 15 of 2014."' Defendants' attempt to argue that that the "on "on or about"closing about"closing date set forth in the contract contract of of sale was the actual actual attempt closing date is horsefeathers, horsefeathers, and it is surprising surprising that that defendants defendants that that buy and sell real property property as closing business, or any attorney attorney familiar familiar with with real estate estate closings closings would would make make such such an argument. argument. By a business, 7 [* 7] 7 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 definition, title title cannot sooner than than the date that that the deed deed to plaintiffs plaintiffs was executed executed by definition, cannot pass pass any sooner James Boniello, Boniello, Managing Managing Member Member of of Boniello Boniello Equities, Equities, which which was June June 11 11,2014 which , 20141, 1, which James would be the Warranty Warranty Date, Date, which which has expired expired under under the one year year category, category, but but not the two would category, as a notice notice of of warranty warranty claim claim was sent on May 27, 2016. 2016. year category, Pursuant to General General Business Business Law §777-a( s777-a( 4)(a), 4)(a), "written "written notice notice of of a warranty warranty claim claim for Pursuant breach of of housing housing merchant merchant implied implied warranty warranty must must be received received by the builder. builder. .. no later later than than breach expiration of of the applicable applicable warranty warranty period." period." Here, Here, the homeowners homeowners closed closed [30] days after the expiration earlier than than June June 11 11,2014. Counsel for PURE PURE sent sent notice notice to Boniello Boniello Land Land and Boniello Boniello , 2014. Counsel title no earlier Equity on May 27, 2016, 2016, and again again on June June 7, 2016, 2016, sufficiently providing notice notice that that its Equity sufficiently providing investigation revealed revealed that that damages damages to the home home were were as a result result of of defendants defendants' ' negligent negligent investigation construction and renovation renovation work, work, and offering offering the opportunity opportunity to conduct conduct an investigation. investigation. construction Thus, the notices notices of of claim claim were were timely. timely. Thus, Turning next next to the breach of contract contract cause cause of of action, action, it is well well settled settled that that "the "the Turning breach of interpretation of of a written written agreement agreement is within within the province province of of the court court and, and, if if the language language of of interpretation agreement is free from ambiguity, ambiguity, its meaning meaning may be determined determined as a matter matter oflaw of law on the the agreement basis of of the writing writing alone alone without without resort resort to extrinsic extrinsic evidence" evidence" (Penguin (Penguin 3rd 3rd Ave. Food Food Corp. v basis Brook Rock Rock Associates, Associates, 174 AD2d AD2d 714, 714, 715 [2d Dept.1991]). Dept. 1991]). "[A] "[A] contract contract is to be construed construed in Brook accordance with with the parties' intent, which which is generally generally discerned discerned from from the the four comers comers of of the accordance parties' intent, document itself. Consequently, Consequently, a written written agreement agreement that that is complete, complete, clear clear and unambiguous unambiguous on document its face must must be enforced enforced according meaning of of its terms, terms, giving giving practical practical according to the plain plain meaning 1lThe The deed could could certainly have been been pre-signed on June June 11, 11, 2014 2014 and and the the closing closing deed certainly have pre-signed on held at at a subsequent subsequent date, date, but but title title cannot cannot have passed before before June June 11, 2014. 2014. held have passed 8 [* 8] 8 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 interpretation to the language language employed employed and the parties' parties' reasonable reasonable expectations expectations (Westchester (Westchester interpretation County Corr. Officers Officers Benevolent Benevolent Assn., Assn., Inc. Inc. v County County of of Westchester, Westchester, 99 AD3d AD3d 998 [2d Dept Dept County 2012]); (Obstfeld (Obstfeld v Thermo Thermo Niton Niton Analyzers, Analyzers, LLC, 112 AD3d AD3d 895, 897 [2d Dept Dept 2013]). 2013]) .. 2012]); Courts have also considered considered the reasonable reasonable expectation expectation and purpose purpose of of the ordinary ordinary business Courts business person factual context context in which which terms terms of of art and understanding used, often often recognizing recognizing person in the factual understanding are used, of business sophistication and acumen acumen of of the particular particular parties parties (Uribe (Uribe v Merchants Merchants the level of business sophistication Bank of of New [1998]). Bank New York, 91 NY2d NY2d 336 [1998]). Contract is a garden garden variety variety real estate estate agreement agreement in which which none none of of the sellers' sellers' The Contract representations survive closing of of the transaction, transaction, and that the acceptance acceptance of of the deed deed by the representations survive the closing purchasers is deemed deemed and construed construed as conclusive conclusive acknowledgment acknowledgment of of the full performance performance by purchasers sellers of of all of of the terms, terms, covenants covenants and provisions provisions of of the Contract, Contract, unless unless expressly expressly stated stated to the sellers contrary. No pertinent pertinent representations representations were were to survive survive the closing. closing. The The Contract Contract also states, states, the contrary. among other other things, things, that that the homeowners homeowners agreed agreed to accept accept a $500 $500 credit credit against against the purchase among purchase price closing pursuant Property Condition Condition Disclosure Disclosure Act Act ("PCDA"), ("PCDA"), and the price at closing pursuant to the Property homeowners agreed agreed to accept accept the $500 credit in lieu of of all remedies remedies afforded afforded under under PCDA PCDA and in homeowners $500 credit of any other other remedies. remedies. There There is no evidence evidence that defendants defendants thwarted thwarted the homeowners' homeowners' lieu of ability to inspect inspect the house house or hid any defects. defects. ability well-settled that that "New "New York York adheres adheres to the doctrine doctrine of of caveat caveat emptor emptor and imposes imposes It is well-settled seller or the seller's seller's agent agent to disclose disclose any information information concerning concerning the premises premises no duty on the seller when the parties parties deal at arm's arm's length, length, unless there is some some conduct conduct on the part part of of the seller seller or the when unless there seller's agent agent which which constitutes constitutes active active concealment" concealment" (Hecker (Hecker v Paschke, Paschke, 133 AD3d AD3d 713 713,, 716 [2d seller's Dept 2015])."Ifhowever, 2015])."Ifhowever, some some conduct conduct (i.e. (Le.,, more more than than mere mere silence) silence) on the part part of of the seller seller Dept 9 [* 9] 9 of 11 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 INDEX NO. 69060/2016 RECEIVED NYSCEF: 08/21/2019 rises to the level of seller may have a duty to disclose information of active active concealment, concealment, a seller disclose information concerning concerning the property" property" (Hecker (Hecker v Paschke, Paschke, 133 AD3d AD3d at 716). The record that prior even afterwards, record shows shows that prior to signing signing the Contract, Contract, and even afterwards, there there is no competent evidence evidence that homeowners homeowners were blocked blocked from the opportunity opportunity to conduct competent conduct an inspection of of the house. house. The The buyers buyers had an inspection inspection done, done, and it revealed revealed no issues issues (EBT (EBT of of inspection Trion James, James, at 22). Trion Specifically, the Contract Contract contained contained a provision provision that that the homeowners homeowners were were fully aware of Specifically, aware of condition of of the house house based based upon upon their their own own inspection inspection and investigation, investigation, and not based based upon upon the condition and not information or representations, representations, written made by the sellers. The Contract Contract provides provides any information written or oral, oral, made sellers. The "Except as otherwise otherwise expressly expressly set forth in this contract, contract, none none of of Seller's Seller's covenants, covenants, that "Except representations, warranties warranties or other other obligations obligations contained contained in this representations, this contract contract shall shall survive survive closing closing (Contract, at 111(c)). provides that that the homeowners homeowners were were "fully "fully aware aware of the physical physical of the (Contract, l(c)). It also provides condition and state ofrepair of repair of of the house house and all other other property property included based on condition included in this this sale, sale, based Purchaser's s own inspection inspection and investigation investigation thereof, thereof, and that that Purchaser Purchaser is entering this Purchaser' entering into this contract based solely upon upon such inspection and investigation investigation and upon any information, contract based solely such inspection and not not upon information, data data statements or representations, representations, written written or oral, oral, except except as otherwise forth herein statements otherwise set set forth herein ....and .... and shall shall accept the same same "as is" (Contract, (Contract, at 12). accept Contract evidences arm's-length nature of the transaction transaction at issue. issue. Under Under these The Contract evidences the arm's-length nature of these circumstances, the obligations obligations and provisions provisions of of the Contract Contract and disclosure statement circumstances, and the disclosure statement were were merged in the deed and extinguished extinguished upon upon closing closing of of title. merged conclusion, defendants defendants demonstrated demonstrated their their entitlement entitlement to summary In conclusion, summary judgment judgment as to the contract claims, claims, which which are dismissed. Defendants also demonstrated demonstrated their their entitlement entitlement to contract dismissed. Defendants summary warranty claims claims pursuant pursuant to GBL §777-a(l)(a) s777-a(l)(a) and S777summary judgment judgment as to the warranty and GBL GBL §77710 [* 10] 10 of 11 INDEX NO. 69060/2016 FILED: WESTCHESTER COUNTY CLERK 08/21/2019 11:57 AM NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/21/2019 a(l)(c) which which are dismissed. dismissed. However, However, summary warranty claims a(l)(c) summary judgement judgement is denied denied as to the warranty claims under GBL §777-a(l)(b). ~777-a(l)(b). under court has considered considered the remainder remainder of factual and legal legal contentions of the parties, parties, The court of the factual contentions of and to the extent extent not specifically addressed herein, herein, finds them them to be either specifically addressed either without without merit merit or rendered moot moot by other other aspects aspects of of this Decision Decision and Order. This constitutes the the Decision Decision and rendered This constitutes Order of of the Court. Court. Order Accordingly, it is hereby: hereby: Accordingly, ORDERED, that that the motion motion for summary of Boniello Boniello Development Development Corp. Corp. is ORDERED, summary judgment judgment of granted, and the complaint complaint is dismissed dismissed as against further granted, against it; and it is further ORDERED, that that the motion motion for summary summary judgment of Boniello Boniello Land Land & Realty, Realty, LTD., LTD., ORDERED, judgment of Boniello Equities Equities is granted granted in part part and denied denied in part part in accordance accordance with and Boniello with this this Decision Decision and and Order; and it is further further Order; 'I/J ORDERED, that that the remaining remaining parties parties are directed directed to appear appear on t:t ORDERED, 10 I() 2019, at ,, 2019, 9: 15AM, in Courtroom Courtroom 1600, the Settlement Settlement Conference Conference Part, Part, at the Westchester Courthouse, 9:15AM, Westchester Courthouse, Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. 10601. 111 Dr. Martin New York Clerk shall mark mark his records records accordingly. accordingly. The Clerk August 21, 2019 2019 Dated: August White Plains, Plains, New York White New York HON. CHARLES D. WOOD Justice of the Supreme Court To: Parties by NYSCEF NYSCEF All Parties 11 11 [* 11] 11 of 11

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