NY RESIDENTIAL SALES NEED NEW STATEMENT JULY 1, 2025

Effective July 1, 2025, a new Property Condition Disclosure Statement (PCDS) is required. You can find it on the Department of State Licensing Services website or by this link: New Property Disclosure Statement

NEW YORK - NO MORE $500 CREDIT ON HOUSE SALES

Signed into law on September 22:

"BILL NUMBER: S5400

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the real property law, in relation to requiring disclo-
sure of information concerning flood insurance on property condition
disclosure statements; and to repeal section 467 of the real property
law relating to liability with respect to property disclosures

 
SUMMARY OF SPECIFIC PROVISIONS:

Sections 1 and 2 of the bill amend the Real Property Law to add new
questions relating to a property's flood history and flood insurance
requirements to the Property Condition Disclosure Statement set forth by
such section. Property owners would have to disclose whether the proper-
ty is located in a 100-year or 500-year floodplain according to FEMA's
flood insurance rate maps, whether the property is subject to require-
ments under federal law to obtain and maintain flood insurance, and the
property's flood insurance history.

Section 3 of the bill amends Section 465 of the Real Property Law to
strike subdivision 1, which currently provides that in the event that a
              

seller fails to provide the Property Condition Disclosure Statement to a
buyer prior to a sale, the buyer receives a $500 credit towards the sale
of the property. It also adds the provisions of Section 467 of the Real.
Property Law, which is repealed by the bill, to Section 465 of the Real
Property Law.

Section 4 of the bill repeals Section 467 of the Real Property Law.

Section 5 of the bill provides the effective date.

 
JUSTIFICATION:

New York's current flood risk disclosure laws require sellers of resi-
dential real property to provide buyers with a property condition
disclosure statement prior to the buyer signing a contract of sale.
Among other things, the statement requires the seller to disclose wheth-
er a property is located in a "designated floodplain," and whether there
are any flooding, drainage, or grading problems that have resulted in
standing water on the property.

The Natural Resources Defense Council (NRDC) currently gives New York's
flood risk disclosure law a failing grade, thanks in large part to the
fact that if a seller fails to provide the disclosure statement to the
buyer, the only penalty for doing so is that the seller has to provide
the buyer a $500 credit towards the purchase price of the property.
This negligible penalty leads many sellers to treat the requirement to
provide the disclosure statement as optional, and the $500 credit as
merely a cost of doing business. New York is unique in this regard, as
no other state has this opt-out credit option in law. The questions
relating to flood history and risk on New York's disclosure statement
are also in need of an update to conform with more comprehensive laws
passed in states such as Texas and Louisiana which provide buyers with
more specific information about the nature of the property's flood risk
and their obligation under federal law to obtain flood insurance for the
property.

New Yorkers deserve to be informed about the condition of residential
property they purchase and to be aware of any flood risks they might
face when buying or renting their homes, especially in an era where
so-called "100-year floods" are happening much more frequently due to
climate change.

This bill would update New York's disclosure statement to arm homebuyers
with more information and repeal the $500 credit, requiring sellers to
either provide the disclosure statement or risk being held liable for
failure to do so.

 
PRIOR LEGISLATIVE HISTORY:

A.7876/S.5472 of 2021-22 - the provisions of this legislation pertaining
to residential leases were included in and passed as A.7876-A/S.5472 and
signed into law by the Governor

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law"

BUYING A HOUSE AND LATER FINDING DEFECTS?

The cost of litigating this type of claim might be higher than the cost of repair. There is a recent case where the Buyer pursued the claim pro se in small claims court but was still not successful. 

DeMARCO v. Petrou, 2021 NY Slip Op 21101 - NY: Town of Webster Village Justice Court April 19, 2021:

"This matter came before the court as part of its small claims calendar. The plaintiff's claim was stated in the court filing as follows: "Defendant sold house to plaintiff and was dishonest on disclosure statement in regards to sale of house". The testimony of the plaintiff revealed that the parties had entered into a standard real estate contract dated April 20, 2020. As a part of that contract the seller signed a Property Condition Disclosure Statement. However, the buyer never signed the "Buyer's Acknowledgment" portion of the property disclosure statement. The deal closed on June 17, 2020. A review of the Purchase and Sale Contract reveals that both parties were represented by their own attorneys. One real estate broker was both the listing agent and the selling agent. That broker, Bonnie P. Pagano, testified at the hearing on behalf of the defendant. The contract was not contingent on a property inspection.^[1] It also contained a standard "AS IS" provision at paragraph 5(E) which states in pertinent part as follows: "Condition of Property. Buyer agrees to purchase the Property and any items included in the purchase AS IS except as provided in paragraph 1(B), subject to reasonable use, wear, tear, and natural deterioration between now and Closing."^[2]

The plaintiff testified that the basis of his claim was the defendant's answer to question number 32 on page five of the said disclosure form. The defendant put an "x" in the box for "No" relative to the "Plumbing system" in answer to the question "Are there any known material defects in any of the following?". The problem was first observed by the plaintiff approximately three weeks after having moved into the property. In fact the plaintiff took possession of the property two days prior to closing. In any event, the plaintiff indicated that the problem was found to have stemmed from the shower in the bathroom off of the master bedroom. That bathroom contained the free standing shower in question and a separate bathtub. The plaintiff testified that the shower was not used by him during those first three weeks of the plaintiff's occupancy, because another shower in another bathroom of the house was utilized. On that first occasion of the use of that stand-up shower the plaintiff observed water running down a wall in a room below the shower. During his testimony plaintiff showed a brief video on his phone of that event.He indicated that he had attempted to use silicone between the various parts of the shower, but that did not correct the problem. As a result, the plaintiff hired a contractor to correct the situation. He entered into evidence pictures of the excavation of the said bathroom and the remedial actions taken.He pointed out black mold which was depicted in the pictures of the excavation of the bathroom walls behind the stand-up shower. It was his contention that the black mold, which would have been caused by moisture, proved that the shower must have leaked prior to his purchase of the residence. However, no mold expert or plumber testified on behalf of the defendant. Finally, the plaintiff entered into evidence a copy of an invoice in the amount of $5,488.00 for construction work to make the required repairs to the bathroom. The plaintiff further testified that he did in fact pay that bill. As a result, the plaintiff was suing for $3,000.00, which is the maximum amount permitted by the Uniform Justice Court Act.^[3]

The defendant testified that he and his wife had lived in the property for approximately thirty three years prior to the sale of the property to the plaintiff. He further testified that he and his wife had utilized the said free standing shower on a daily basis, sometimes multiple times per day because of being in the restaurant business. The defendant testified that they never experienced any problems of any leakage of water from that shower to the room below. It is further noted from the Purchase and Sale Contract, which was entered into evidence by the defendant, that it provided for a "Pre-Closing Walkthrough" in paragraph 6 (A) thereof. The defendant also entered into evidence a document entitled "Final Walk-Through". Said document was signed by the plaintiff and the real estate broker. It indicated that the walk-through took place on June 12, 2020, which was five days before the closing. The walk-through document stated in pertinent part that "I have had an opportunity inspect the property . . . and state that the Property has been left in satisfactory condition and hereby accept the Property in the condition it was at this time and date with the following exceptions: NONE." Nevertheless, the real estate broker indicated during her testimony that the plaintiff had pointed out to her some off white paint on the ceiling under a different bathroom, which he thought might have been an attempt to cover water damage to that ceiling, but was assured by the broker that there was no problem. The plaintiff testified that she told them the sellers never used the shower which was off their master bedroom. The real estate broker testified that the plaintiff was

confusing what she told him about a different shower in the house, and that the sellers had used the stand-up shower off their bedroom on a daily basis without any problems.

Issues Presented.

Does the Property Condition Disclosure Act establish a cause of action for a false or incomplete statement on the property condition disclosure form?

What remedy does the Property Condition Disclosure Act provide a buyer for a failure to comply with the act?

Does the plaintiff have valid common law breach of contract or fraudulent misrepresentation cause of action against the defendant based on the damage caused by the leak from the shower?

Legal Analysis.

Liability Under the Property Condition Disclosure Act. Section 1804 of the Uniform Justice Court Act states in pertinent part that "The court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law. . . ." Article 14 of the Real Property Law encompasses the Property Condition Disclosure Act [the Act].^[4] Property condition disclosure statements are required by Real Property Law § 462 (1). That section states as follows:

"Except as is provided in section four hundred sixty-three of this article, every seller of residential real property pursuant to a real estate purchase contract shall complete and sign a property condition disclosure statement as prescribed by subdivision two of this section and cause it, or a copy thereof, to be delivered to a buyer or buyer's agent prior to the signing by the buyer of a binding contract of sale. A copy of the property condition disclosure statement containing the signatures of both seller and buyer shall be attached to the real estate purchase contract. Nothing contained in this article or this disclosure statement is intended to prevent the parties to a contract of sale from entering into agreements of any kind or nature with respect to the physical condition of the property to be sold, including, but not limited to, agreements for the sale of real property `as is.'"

It must be noted that the law requires that a copy of the disclosure form be attached to the real estate contract. The required form of the property condition disclosure statement is set out in RPL § 462 (2). However, nowhere does the law state that the disclosure statement is made a part of or is incorporated into said purchase and sale contract. That is significant in that the standard Purchase and Sale Contract utilized in Monroe County, which is the one entered into by the parties herein, states in pertinent part in paragraph 8 (E) "This contract when signed by both Buyer and Seller will be the record of the complete agreement between the Buyer and Seller concerning the purchase and sale of the Property. . . . Seller's representations in this Contract shall not surviv after closing."

Further review of that form is instructive as to the intent of the legislature in requiring this form, with exceptions, to be a part of every residential real estate transaction. Note that the introductory portion of the disclosure form sets out its intended purpose, as follows:

"Purpose of statement: This is a statement of certain conditions and information concerning the property known to the seller. This disclosure statement is not a warranty of any kind by the seller or by any agent representing the seller in this transaction. It is not a substitute for any inspections or tests and the buyer is encouraged to obtain his or her own independent professional inspections and environmental tests and also is encouraged to check public records pertaining to the property" (See RPL § 462 [2])

The statutory form goes on to say that

"A knowingly false or incomplete statement by the seller on this form may subject the seller to claims by the buyer prior to or after the transfer of title. In the event a seller fails to perform the duty prescribed in this article to deliver a Disclosure Statement prior to the signing by the buyer of a binding contract of sale, the buyer shall receive upon the transfer of title a credit of five hundred dollars against the agree upon purchase price of the residential real property." (See RPL § 462 [2])

Establishment of a cause of action by the Property Condition Disclosure Act. This law went into effect on March 1, 2002.^[5] Since that time there has been a fair amount of case law generated at the trial court level relative to the issue as to whether or not the act created a new cause of action based on an alleged false or incomplete statement by the vender of a residential property. In fact, the claim submitted by the plaintiff herein is based on the presumption that an alleged false statement made by the defendant on the disclosure statement is in of itself the basis for a suit for damages incurred by the plaintiff in correcting the problem discovered subsequent to the closing. In other words, the plaintiff's claim assumes that the Property Condition Disclosure act establishes a cause of action for a false or incomplete statement on the disclosure form.

That theory has not been the case in this jurisdiction. It has been held that

"The Disclosure Statement does not create a duty to disclose that supersedes the common law nor does the Property Condition Disclosure Act create a cause of action beyond the common law. The common law principle of caveat emptor, and the necessity of a showing of justifiable reliance for a claim of fraudulent misrepresentation in real estate purchase actions, remain the applicable law." (Renkas v. Sweers, 10 Misc 3d 1076[A], 2005 N.Y.Slip Op. 52247[U], *5, [Supreme Court, Monroe County, Stander, J., 2005])

In addition, prior to that decision, a Civil Court, City of New York held that

". . . an analysis of the statute leads to the conclusion that there is no cause of action available to the plaintiffs under the terms of the Act. Since plaintiffs are seeking to enforce a right and remedy created by a statute which changed the common law, the terms of the Act must be strictly construed (Statutes 301). Unlike consumer protection legislation found in the General Business Law which gives a right of action either to the consumer or to the attorney general, this Act provides no such specific right of action to the purchaser for a breach of the Disclosure form. (Malach v. Chuang, 194 Misc 2d 651, 654, 754 N.Y.S. 835, 838 [2002])

That case was cited by this court when it held that a plaintiff could not ". . . rely on the on the representations relative to the electrical system as set out in the Property Condition Disclosure Statement for purposes of seeking relief. . . ." (Spinney v. Mirabella, 20 Misc 3d 1137(A), 2008 NY Slip Op. 51768[U], * 2 Webster Just Ct, DiSalvo, J.). See also Middleton v. Calhoun, 13, Misc 3d 949, 955, 821 N.Y.S.2d 444,449 [2006] wherein the court stated "There is nothing in the history or in the language of the statute that expounds on the elements for a new cause of action."^[6]

One of the reasons why the Property Condition Disclosure Statement is not the source of relief on which a buyer can rely is the common "AS IS" clause found in the standard Real Estate Purchase Contract. The court in Renkas held that

"In the Purchase and Sale Contract the Buyers specifically and unequivocally agreed to purchase the property in an "AS IS" condition, subject to inspections. The Buyers performed inspections of their choice and then decided to continue with their purchase of the property in its `AS IS' condition. The Seller's answers, whether oral or in the Property Condition Disclosure Statement, did not thwart the ability of the Buyer to assess and determine the condition of the property and did not alter the contract between the parties to purchase the property `AS IS.'"^[7]

To now hold that Property Condition Disclosure Statement overrides the said "AS IS" paragraph is to completely ignore one of the stated intentions of the parties to the contract. Also it must be noted that the first paragraph of the statutory form of the Property Condition Disclosure Statement states as follows: "The Property Condition Disclosure Act requires the seller of residential real property to cause this disclosure statement or a copy of thereof to be delivered to a buyer or buyer's agent prior to the signing by the buyer of a binding contract of sale." (See RPL § 462 [2]) Thus the buyer is to be advised of the residential property's condition prior to execution of the of the Purchase and Sale Contract by the buyer. This certainly gives the potential buyer the opportunity to investigate the representations made in the said disclosure statement prior to presenting a purchase offer or by making the contract contingent on the approval of a professional inspection report relative to each of the items set out in the disclosure statement. In addition, in the "Purpose of Statement" paragraph cited in full above the buyer is basically being told not to rely on disclosure statement, despite being made on the alleged actual knowledge of the seller. Note the phrases that the disclosure statement is "not a warranty of any kind by the seller" nor "a substitute for any inspections or tests", and that "the buyer is encouraged to obtain his or her own independent professional inspections and environmental tests". Clearly the Property Condition Disclosure Statement is meant to be a starting point of the discussion and not an end in and of itself. The document essentially advises potential buyers not to rely on its terms. "In addition, the Property Condition Disclosure Act specifically states that this disclosure statement is not intended to prevent the parties from entering into an agreement for the sale of real property "AS IS" (Real Property Law § 462[1])."^[8]

Remedy Provided For a Violation of the Property Condition Disclosure Act. The remedies provided for under the act are set out in RPL § 465. Subsection 1 provides for five hundred dollar credit at closing if the seller does not ". . . deliver a disclosure statement prior to the signing by the buyer of a binding contract of sale. . . . "The Purchase and Sale Contract signed by buyer and presented to the seller or is his or her agent is a purchase offer and is only a binding contract when it is signed by the seller. Thus under the law a seller must provide the Property Condition Disclosure Statement prior to being signed by the seller. In order for the parties to comply with the law, the disclosure statement would have to be provided to a potential buyer prior to the execution of a purchase offer. Otherwise acceptance of the offer by the seller followed by the providing of the disclosure statement would put the seller in violation of the act. It is noted that the Purchase and Sale Contract, herein executed by the parties, but signed first by the buyer as an offer, states in paragraph 5(A) that "Seller has provided buyer with the attached Seller's Property Condition Disclosure Statement." Assuming that to be true, there would have been no requirement for the seller to provide the buyer with the said five hundred dollar credit at closing.

RPL § 465 (2) states as follows:

"Any seller who provides a property condition disclosure statement or provides or fails to provide a revised property condition disclosure statement shall be liable only for a willful failure to perform the requirements of this article. For such a willful failure, the seller shall be liable for the actual damages suffered by the buyer in addition to any other existing equitable or statutory remedy."

Subsection two is more difficult to interpret as to when it applies and to specifically what damages can be awarded. As the court in Malach stated

"Having read this paragraph several times, it is not clear that a reasonable person can understand what it means. It states: `Any seller who provides a property condition disclosure statement shall be liable only for a wilful failure to perform the requirements of this article.' However nowhere in the statute is there a definition of `requirements of this article.' Are not the `requirements of this article' the completion of the form or completion of a revised form and delivery of it to the buyer (RPL § 462)? Or is it to be implied that the `requirements of this article' are the `truthful' completion of the form? The statute contains no definition of what is meant by a `wilful failure to perform the requirements of this article.' Since this is a legislative attempt to create a new legal right should not the language of the statute be clear and unequivocal? There is no guidance as to what is meant by this phrase."^[9]

Thus it would appear that the only real remedy is the five hundred dollar credit at closing if the seller does not provide the disclosure statement.

Liability Under the Common Law. The plaintiff's Request For Small Claims Action was worded in a manner that alleges a cause of action arising from the Property Condition Disclosure Form and not as a breach of contract. It has been held in the Malach case that "Although plaintiffs did not plead a breach of contract action, CPLR 3025(c) permits the court to conform the pleadings to the proof adduced at trial. This being the case the court will analyze the evidence that plaintiffs provided at trial to determine if a cause of action exists for breach of contract."^[10] This court will take the same approach as to a possible cause of action for fraudulent misrepresentation.

Breach of Contract. An argument that the Property Condition Disclosure Statement is for contractual purposes incorporated into the entire contract between the plaintiff and defendant is not helpful in assessing the importance of the truth or completeness of representations made in the statement. That is because

". . . the entire document is incorporated into the contract, not just the separate representations. The terms set forth by the Disclosure Statement include a statement that the disclosures are not warranties and that such disclosures are not a substitute for inspections and tests. The Disclosure Statement specifically informs the Buyers that such statement is `not a warranty of any kind by the seller.' The Buyers signed the Disclosure Statement with an acknowledgment that it was not a warranty and not a substitute for inspections or testing of the property."^[11]

As a result, in reviewing the terms of the contract, one must again return to the "AS IS" provision found in paragraph 5(E) of the Purchase and Sale Contract. In fact the actions of the plaintiff in failing to make the contract contingent on his approval of the results of a professional inspection, by not thoroughly inspecting the property during the walkthrough, by not inspecting the residence himself during his pre-closing possession or for the three weeks after the closing evidences the plaintiff's intention to take the property in whatever condition it was at the time he made the purchase offer.

The next question is whether or not the leaky stand-up shower represented a latent defect. "If this is a latent or hidden defect, then the defendants have to have had actual knowledge of the condition and the concomitant duty to speak."^[12] A latent defect has been variously defined as follows: "A hidden defect. . . . A defect in a article sold, which is known to the seller, but not to the purchaser, and is not discoverable by mere observation. . . . A defect which reasonably careful observation will not reveal." [Internal citations omitted]^[13] It is important to remember ". . . that `[u]nder the well-established doctrine of merger, provisions in a contract for the sale of real estate merge into the deed and are thereby extinguished absent the parties' demonstrated intent that a provision shall survive transfer of title' (Hunt v. Kojac, 245 AD2d 858, 858-859, 666 N.Y.S.2d 330 [1997]; see Schoonmaker v. Hoyt, 148 NY 425, 429-430, 42 N.E. 1059 [1896]; Alexy v. Salvador, 217 AD2d 877, 878, 630 N.Y.S.2d 133 [1995])." (Arnold v. Wilkins, 61 AD3d 1236, 876 N.Y.S.3d 780, 781 [3d Dept 2009]) The Appellate division refused to apply the latent defect exception to the merger doctrine in Arnold because the defect in the septic system ". . . was `discoverable' prior to the closing."^[14] There is no doubt that in the instant case, if in fact the stand-up shower had been leaking when the property was owned by the seller, that said condition would have been easily discoverable prior to closing. This is especially true when in this case the plaintiff obtained possession of the home prior to the closing. In addition any representations by the seller/defendant or his agent are by contract merged into the deed pursuant to paragraph 8 (F) of the Purchase and Sale Contract which states "No oral agreements or promise will be binding. Seller's representations in this Contract shall not survive after Closing." Thus the plaintiff does not have a meritorious cause of action for common law breach of contract.

Fraudulent Misrepresentation. In analyzing the facts relative to the existence of any alleged fraudulent misrepresentation it must be noted that "The common law principle of caveat emptor, and the necessity of a showing of justifiable reliance for a claim of fraudulent misrepresentation in real estate purchase actions, remain the applicable law."^[15] The plaintiff's argument is that the defendant must have had actual knowledge of the fact that water leaked from the stand up shower in the master bathroom, because the first time he used the shower, which was three weeks after closing, water ran down the wall of the room beneath the shower. Pictures of the wall behind the shower took during the renovation process show water stains and mold. Other pictures entered into evidence shows a stain on the ceiling and upper wall in the room below the shower. Those particular stains were never questioned by plaintiff before the closing. Another picture shows a sheet of drywall taken down from the ceiling below the shower with water damage on the side that faced the floor of the bathroom. That damage would not have been observed by any inspection. As previously stated a video on the plaintiff's phone showed the water running down the wall below the shower.

The plaintiff did not provide an expert witness or the contractor who did any of the renovation work. In fact all we have is the sworn testimony of the plaintiff who said he never used the shower for about three weeks after closing. As previously noted the plaintiff waived having a professional property inspection as a contingency of the contract. Nor was there any testimony that the plaintiff himself conducted an inspection of the workings of any of the bathroom fixtures. There is not even any evidence that the plaintiff examined the Property Condition Disclosure Statement at any time before entering the contract or closing on the property as the said form was not signed by him. So it is not even certain that the plaintiff ever relied on the said disclosure form before entering the contract.

Again the case of Renkas v. Sweers, 10 Misc 3d 1076[A], 2005 N.Y.Slip Op. 52247[U], *5, [Supreme Court, Monroe County, Stander, J., 2005] is instructive.The facts of that case are very similar. In that case "The Buyers assert[ed] a claim for fraudulent misrepresentation by the Seller in the third cause of action alleging that Seller had knowledge of the defective condition in the basement related to standing water and that Seller misled Buyers both orally and in the Property Condition Disclosure Statement."^[16] The first question faced by the court was what constitutes fraudulent misrepresentation? The court stated that

"To prove a cause of action for fraudulent misrepresentation the Buyers must establish the following elements:

(1) a misrepresentation or an omission of material fact which was false and known to be false by the defendant, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury (citations omitted)."^[17]

The court then addressed whether or not the seller made an attempt to hide the complained of condition from the seller.

"If a seller actively conceals a condition of the property, then an exception to the principle of caveat emptor may exist. . . . Active concealment is some conduct, more than mere silence, by the seller that may create a duty to disclose information concerning the property. . . . To recover damages for active concealment, `the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor.'. . . [Internal citations omitted]"^[18]

Thus even in situations where there was active concealment by the seller of real property, the buyer is not automatically entitled to relief. The burden remains on the buyer to do his or her due diligence relative to the condition of the property that is being purchased. Although it is true that "New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arms length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment. . . ." (Jablonski v. Rapalje, 14 AD3d 484,485, 788 N.Y.S.2d 158,160 [2nd Dept 2005]). But the buyer must show more than active concealment. "To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor (see Platzman v. Morris, supra at 562, 724 N.Y.S.2d 502)."^[19]

In the instant case, there was not any attempt to actively conceal anything about the condition of the property. As previously indicated the plaintiff waived his right to have a professional property inspection. The property was made available to the plaintiff five days before the closing for a walkthrough. In addition, the plaintiff was allowed to move into the property two days before the closing. As a result, the plaintiff had an unfettered opportunity to check out every part of the house and its various utilities. Nevertheless, the plaintiff choose not to use the shower in the bathroom off the master bedroom. Certainly, one would not expect a seller to make his or her property so available to a purchaser if the seller was trying to hide a defect that would become obvious at the first use of the defective item in question days before the purchase was finalized. In fact a shower off the master bedroom would be an item one would expect a buyer in early possession to use. Since there was no evidence of any active concealment by the defendant or any effort on the part of the defendant to thwart the plaintiff from inspecting the property, the plaintiff could not prevail on a claim of fraudulent misrepresentation.

Conclusion

The plaintiff's claim based on an alleged false or incomplete statement made on the Property Condition Disclosure form is hereby dismissed. In addition for reasons stated previously herein the plaintiff failed to establish a proper claim for breach of contract or fraudulent misrepresentation under the common law. This constitutes the decision and order of this court.

[1] The plaintiff testified that he was in the real estate business. That he did not believe hiring a property inspector would be useful, because a property inspector would not run the water long enough to detect any problems.

[2] Paragraph 1(B) deals with personal property to be transferred with the real estate. Said paragraph warrants said items of personal property to be in "working order at the time of closing" except for any specific items of personal property that are specifically excluded from that guaranty. In this case that contract provision indicated there were "No exclusions".

[3] (UJCA § 1801.)

[4] (Real Property Law § 460.)

[5] (2001 McKinney's Session Law News of NY, Ch. 456 § 3)

[6] This court does take notice of the case of Calvente v. Levy, 12 Misc 3d 38,40, 876 N.Y.S.3d 828,830 [App Term, 9th & 10th Jud Dists 2006] wherein the court held that "Real Property Law § 465 (2) established a cause of action under the Real Property Disclosure Law. However, this court disagrees with that finding. Furthermore this court is not bound by that decision. See People v. Pestana, 195 Misc 2d 833, 836-837, 762 N.Y.S.2d 786,789 [2003], which explained that inferior courts must follow the decisions rendered by the Appellate Division of another department until that department or the Court of Appeals renders a different opinion. That is ". . . justified by the status of the Appellate Division as a `single statewide court divided into departments for administrative convenience.'" The appellate term is not accorded the same authority. In fact "The appellate term, by contrast is a court of local jurisdiction. (NY Const. Art. VI, § 8[a])." Thus courts outside of the Second Department are not bound by the decisions of the Appellate Term of the Second Department.

[7] (Renkas at *5)

[8] (Id.)

[9] (Malach at 656, 839-840)

[10] Malach at 663, 844-845)

[11] (Renkas at *6) However, as previously stated, the buyer herein did not sign the "Buyer's Acknowledgment."

[12] (Malach, at 665, 847)

[13] (Black's Law Dictionary 1027 [Revised 4th ed 1968])

[14] (Id. at 1237, 781.)

[15] (Renkas at *5)

[16] (Id. at *2.)

[17] (Id.)

[18] (Id. at *3.)

[19] (Id. at 485, 160-161.)"

IS THIS DOCUMENT A CONTRACT FOR SALE OF LAND

A family dispute in which Dad and his wife is trying to evict Son and his wife from their home. Son claims to be an "owner" of the property due to a writing which Son claims is a contract of sale. 

Templar v Templar, 2021 NY Slip Op 31611(U), May 14, 2021, Supreme Court, Wayne County, Docket Number: 84778, Judge: Daniel G. Barrett:

"The Plaintiffs, Kathleen and Paul Templar, have brought this action seeking to
evict the Defendants, Jeramie and Jessica Templar from 232 East DeZeng Street, Clyde,
New York. The parties are married to each other and Defendant, Jeramie Templar, is the
son of Plaintiff, Paul Templar.

Each of the Plaintiffs and Defendant, Jessica Templar, testified in this case.

Defendant Jeramie Templar, although present at the hearing, did not testify and no reason
was given for his non-participation in this hearing.

There is no dispute that the Plaintiffs are record owners of the property located at
232 DeZeng Street. The Defendants are relying upon a writing signed by all parties dated
December 1, 2016, as a land contract which prevents the Plaintiffs from evicting them.
This writing will be evaluated at a later point in this Decision.

The testimony of the Plaintiffs is consistent. Plaintiff Kathleen Templar moved to
her daughters house in Canastota in March of 2016 to help the daughter run her business.
This was a temporary move not a permanent relocation. She left various personal effects
at 232 East DeZeng Street including her mother's ashes, family antiques and other items.
She left these various articles of personal property in the first floor bedroom, parlor,
rooms upstairs and the attic. One of the rooms was locked.

In December 2016 Plaintiff Paul Templar moved to Canastota to be with his wife.
He, likewise, left various personal effects, family antiques, military documents and his
military uniform. These items were left in the same places as Kathleen Templar's
belongings-the first floor bedroom, parlor, rooms on the second floor and the attic. One
of these rooms was locked.

The Plaintiffs allowed the Defendants to move into 232 DeZeng Street when
Plaintiff, Paul Templar, temporarily moved to Canastota to be with his wife. The
Plaintiffs entertained the idea of maintaining a life use of the residence with the property
passing to the Defendants after their passing. This was simply a verbal discussion,
nothing was committed to in writing. The Plaintiffs clearly intended to return to 232
DeZeng Street to live.

The previously referenced writing dated December 1, 2016, was executed by all of
the parties and labeled as Exhibit 10 and duly admitted into evidence.

The house needed a new furnace. A grant program was available but it was not
available unless the applicant owned the premises. According to the Plaintiffs that is the
reason Exhibit 10 came into existence. The Plaintiffs testified they did not prepare
Exhibit 10. Defendant, Jessica Templar, testified the Plaintiffs had already executed the
writing before it was presented to her. Plaintiffs testified they signed Exhibit 1 O so that
the Defendant would qualify for the grant to replace the furnace. A new furnace, in fact,
was installed.

While residing in Canastota, at times unsolicited, Defendant Jeramie Termplar
would transport the Plaintiffs' personal property to Canastota on a regular basis. The
Plaintiffs did not request that he do that nor did they give him permission to empty their
house. Defendant, Jessica Templar, refuted this testimony. She testified that the
transport of the personal property was done at the request of the Plaintiffs.
While the Plaintiffs were residing in Canastota, Defendant, Jeramie Templar told
the Plaintiff, Paul Templar, he needed the key to the locked door so that the room could
be winterized. The key was not returned and the lock was replaced by the Defendants.
No key to open this door was ever presented to the Plaintiffs.

In June 2019 the Plaintiffs intended to move back into 232 DeZeng Street. They
were forbidden to do so by the Defendants. The Plaintiffs were barred from moving their
personal belongings back into the house and they have had to seek a residence elsewhere.
According to the Verified Complaint, the Plaintiffs served a 30 Day Notice to
Vacate on the Defendants on July 10, 2019.

The Defendants, per the testimony of Defendant Jessica Templar, asserted that
Exhibit 10 is a land contract. Exhibit 10 was not prepared to qualify for a new furnace
grant. It was her understanding she was purchasing an interest in land.

ANALYSIS
This case pivots on the legal significance of Exhibit 10. Exhibit 10 is very brief
and is reproduced here in its entirety:

Kathleen and Paul Templar have entered into a
rent to own agreement with Jessica and Jeramie
Templar. Jessica and Jeramie are living in the
house at 232 East DeZeng Street at this time, as
of December 1, 2016. Kathleen and Paul Templar
reside at 2990 State Route 31, Canastota.

The phrase in the first sentence "have entered into a rent to own agreement" gives
one the impression that there is a separate agreement that has already been executed. But
this is not the case. The next two sentences tell us where the Defendants and Plaintiffs
resided on December 1, 2016.

Since we are dealing with an interest in real property the Statute of Frauds has to
be satisfied. "The essential terms of a real estate contract typically include the purchase
price, the time and terms of payment, the required financing, the closing date, the quality
of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes
and utilities ... [W]here a contract's material terms are not reasonable definite, the contract
is unenforceable" (Matter of Licata, 76 A.D. 3d 1076, 1077 [2 "d Dep't 2010] 443;
Jefferson Holdings, LLC v Sosa, 174 A.D. 3d 486, 487 [2"d Dep't 2019]).

It is argued that parol evidence will provide the missing links to save this contract.

In Pfiel v Cappiello, 29 A.D. 3d 1187, [3 rd Dep't 2006] quoting the following portion of
the decision in the case of Wacks v King shows this is not accurate:

GOL 5-703(2) provides, in relevant part, that a contract for
the sale of any real property, or interest therein, is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the
party to be charged. To that end, the underlying instrument
must designate all parties, identify and describe the subject
matter and state all essential terms of a complete agreement.
Where as here, the subject matter of the agreement is real
property, the writing must describe the property involved
with such definiteness and exactness as will permit it to
be identified with reasonable certainty. Finally, the
determination of whether an instrument satisfies the
Statute of Frauds is based solely on the language of the
document itself, without consideration of parol evidence.

Also, to satisfy the Statute of Frauds, a memorandum subscribed by the party to be
charged, must designate the parties, identify and describe the subject matter, and state all
of the essential terms of a complete agreement. A writing is not a sufficient
memorandum unless the full intention of the parties can be ascertained from it alone,
without recourse to parol evidence, Dahan v Weiss, 120 A.D. 3d 540 [2"d Dep't 2014].
"Parol evidence, that is evidence outside the four corners of the document, is
admissible if a court finds an ambiguity in the contract. As a general rule, extrinsic
evidence is inadmissible to alter or add a provision to a written agreement." §3: 19 Statute
of Frauds, generally. 11 PT I West's McKinley's Forms Real Property.

It is also argued that this Court should look at the text messages between the
parties. This is not permissible because of parol evidence and it is not permissible as a
writing that would satisfy the Statute of Frauds, (see Vista Developers Corp. v VFP
Realty. LLC, 17 Misc. 3d 914, 847 N.Y.S. 2d 416).

All the parties who testified, Plaintiffs and Defendant Jessica Templar, testified
they did not prepare Exhibit 10. Defendant Jeramie Templar did not testify. The Court is
permitted to draw a negative inference as a result of his not testifying and find that he
prepared Exhibit I 0. In that event the contract can be interpreted against the interests of
the Defendants.

Based on the foregoing the Court finds that there is no contract for the sale of the
real property and the Plaintiffs are entitled to a warrant of eviction. Counsel for Plaintiffs
to prepare a warrant of eviction which may be served on or after June 25, 2021."

ANY REMEDY WHEN CONDO BOARD REFUSES TO APPROVE SALE?

Tumayeva v. Ocean Condo. No. Two, NYLJ March 18, 2021, Date filed: 2021-02-05, Court: Supreme Court, Kings, Judge: Justice Debra Silber, Case Number: 515695/2020:

"In this action, commenced by a prospective purchaser of a condominium unit who was not able to purchase, defendants (the condominium association’s board of managers and the individuals who are board members) move, pre-answer, to dismiss the complaint for lack of standing, failing to state a cause of action, and founded on documentary evidence (CPLR 3211 [a] [1], [3], [7]). The four causes of action in the complaint are tortious interference with contract, breach of contract, breach of the By-Laws and/or breach of plaintiff’s third-party beneficiary status under the By-Laws, and breach of fiduciary duty.

....

Here, the court finds that the plaintiff lacks standing to raise the claims in her third cause of action, breach of the condominium’s by-laws, because the by-laws did not apply to her directly or as a third-party beneficiary, as she was solely a prospective unit purchaser. The fourth cause of action, breach of fiduciary duty, fails to state a viable cause of action for the same reason. Plaintiff alleges no facts that would establish a fiduciary relationship between her and any of the defendants.

Plaintiff’s second cause of action, for breach of contract — alleging a “contractual relationship” between herself and the defendants on the basis of a processing fee she paid to the condominium to review her request to purchase the unit — also fails to state a viable cause of action. Looking at it in the light most favorable to plaintiff, there are insufficient facts to demonstrate that she and the condominium board entered any contract. There was no offer, no acceptance, and no privity. The selling unit owner was the party who asked the board to review the application, and instead of paying the fee, asked the buyer to pay it. That does not create a contract between the board of managers and the prospective purchaser.

Thus, the second, third, and fourth causes of action are dismissed.

The only claim that plaintiff does have standing to maintain, in this court’s opinion, is plaintiff’s cause of action for tortious interference with her contract. She claims, perhaps not artfully enough, that the President of the Board of Managers owns and lives in the unit directly below the subject unit, that he did not want children living above him and plaintiff has young children, and he did not want a sale for the price plaintiff had negotiated with the seller. The contract was subject to short sale approval by the bank holding the first lien on the unit, a short sale which had been approved by the seller’s bank. Plaintiff claims the board was troubled that it would appear in the public record and lower the value of the units in the development, so the condominium’s Board interfered with her contract with the selling unit owner, so she was not able to purchase the unit. The condo board did not choose to exercise their right of first refusal, plaintiff alleges, but they would not provide the document which this development ordinarily provides, stating that they were not exercising their right of first refusal. Apparently, without this document, Chase Bank, which had provided a mortgage commitment to plaintiff, refused to close. While this document is not required by the Bylaws of the condominium, it is apparently the custom and practice in this development, which has hundreds of units in different “phases” of the development, each with a different board of managers. As a result of the delay, the holder of the second lien on the unit foreclosed on it, preventing plaintiff from closing. The auction was held about two months after plaintiff was supposed to close, and the unit was sold to an investor subject to the lien of the first mortgage.

Additionally, plaintiff’s claims against the individual defendants must be dismissed. Each of the individual defendants is named a party in their individual capacity, not in their capacity as officers or directors of the Board of Managers. An action against an unincorporated association (which is what a condominium is in New York) must be maintained against its president or treasurer (see NY Gen Assn Law §13; Safe Haven Props. LLC v. Madison Green Condominium, 183 AD3d 460 [1st Dept 2020]; Caines v. Prudential Ins. Co., 8 Misc 2d 789, 168 NYS2d 813 [Sup Ct, NY County 1957]). This error is amendable, however, and is not fatal to the action. Therefore, the entire complaint is dismissed as asserted against the individual defendants."

THE RISK TO A SELLER WHO WON'T SELL..AND A BUYER WHO WON'T WALK AWAY

As the court noted in the companion appeal, the elements of a cause of action for specific performance of a contract for the sale of real property are that the plaintiff substantially performed its contractual obligations and was [ready,] willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law. NOTE: the contract of sale was entered into in September 2013 and the court ordered conveyance took place around October 2018. That's a long wait for a house.

Breskin v Moronto, 2019 NY Slip Op 04127, Decided on May 29, 2019, Appellate Division, Second Department:

"The basic facts of this case are related in a companion appeal (see Breskin v Moronto, _____ AD3d _____ [Appellate Division Docket No. 2016-03080; decided herewith]). In an order dated February 22, 2016, the Supreme Court granted the plaintiffs' motion for summary judgment on their first cause of action, which sought specific performance, and on their second cause of action, which sought reasonable costs and expenses, including attorneys' fees, pursuant to the terms of the parties' contract. The order directed the defendant to deliver the premises vacant, with no tenants on the first and third floors, and directed the plaintiffs to make a separate motion for an award of reasonable costs and expenses, including attorneys' fees. In an order dated March 7, 2016, the court, upon renewal and reargument, adhered to the determination in the order dated February 22, 2016, [*2]and directed that "[s]pecific performance of the contract must be completed on or before" April 6, 2016.

When the closing did not occur by April 6, 2016, the plaintiffs moved, inter alia, to hold the defendant in civil contempt and to direct the Sheriff of Kings County to convey the property to them. In a separate motion, the plaintiffs sought an award of attorneys' fees in the sum of $199,123.50, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. In the order appealed from, the Supreme Court directed the defendant to convey the subject real property to the plaintiffs and awarded the plaintiffs attorneys' fees in the sum of $5,000, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. The court denied that branch of the plaintiff's motion which was to hold the defendant in civil contempt, "particularly without a hearing ascertaining the intent of the defendant." The plaintiffs appeal.

While this appeal was pending, in an order dated October 26, 2018, the Supreme Court directed the Sheriff of Kings County to convey the property to the plaintiffs, and the property was so conveyed. Accordingly, the remaining issues on this appeal are whether the defendant should have been held in civil contempt and the amount of attorneys' fees awarded to the plaintiffs.

"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Matter of Hughes v Kameneva, 96 AD3d 845, 846). "In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence" and willfulness need not be established (Palmieri v Town of Babylon, 167 AD3d 637, 640 [citation omitted]).

Since a showing of willfulness is not required to establish civil contempt, no hearing was necessary with respect to the defendant's intent. We conclude that the defendant's conduct in failing to vacate the premises was in civil contempt of the orders dated February 22, 2016, and March 7, 2016. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing and determination as to the appropriate punishment for contempt and the appropriate directive for allowing the defendant to purge herself of her contempt.

Further, it is apparent that the defendant was in violation of the terms of the parties' contract, and pursuant to the terms of that contract the plaintiffs were entitled to an award of reasonable costs and expenses, including attorneys' fees. The Supreme Court improvidently exercised its discretion when it awarded the plaintiffs the sum of only $5,000 in attorneys' fees. Accordingly, we also remit the matter to the Supreme Court, Kings County, for a hearing and a new determination of the award of attorneys' fees to which the plaintiffs are entitled pursuant to the terms of the contract (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 150 AD3d 683, 690; Altadonna v Accord Contr. & Mgt. Corp., 148 AD3d 764).

Since this action for specific performance is an action of an equitable nature, interest on the award of reasonable costs and expenses, including attorneys' fees, and the rate and date from which that interest shall be computed shall be in the court's discretion (see CPLR 5001[a]; John Hancock Life Ins. Co. of N.Y. v Hirsch, 77 AD3d 710, 711), governed by the facts, including any wrongful conduct by either party (see Danielowich v PBL Dev., 292 AD2d 414, 415). This issue should be determined after the hearing."

BUYING A HOUSE - WITH MOLD

A true case of Buyer's remorse - in the lower court's decision, it is noted that the buyer also, pursuant to Section 465 of the Property Condition Disclosure Act ("PCDA"), agreed to accept the
$500 credit in lieu of all remedies afforded under PCDA and in lieu of any other remedies.

Rosner v Bankers Std. Ins. Co,. 2019 NY Slip Op 04015, Decided on May 22, 2019. Appellate Division, Second Department:

"On January 24, 2013, the defendants Jay Bernstein and Allison Bernstein (hereinafter together the defendants), as sellers, entered into a contract of sale with the plaintiffs, as buyers, for a house. The contract of sale contained language providing that, unless expressly stated, no covenant, warranty, or representation in the contract survived closing. A rider to the contract stated that the defendants were not aware of any mold or vermin infestation in the house. Prior to the closing, the plaintiffs conducted a home inspection which revealed, among other things, the presence of water staining and evidence of water infiltration on the interior of the house. The home inspection report stated that a mold evaluation was beyond the scope of the inspection and recommended that if the plaintiffs were concerned about potential mold issues, they should call a professional mold abatement company to perform an inspection. The report also stated that the need for some periodic general pest control should be anticipated. The plaintiffs did not undertake a mold inspection. The plaintiffs closed on the house on February 27, 2013.

According to the plaintiffs, almost immediately after she began getting the house ready to move into, the plaintiff Brooke Rosner began to experience, among other symptoms, headaches, lightheadedness, and dizziness when she was inside of the house which only abated after she left the house. On March 25, 2013, the plaintiffs had mold testing done of the house, which revealed extremely elevated levels of mold throughout the house. Further analysis confirmed proliferate mold growth in the house which allegedly rendered the house uninhabitable.

The plaintiffs commenced this action against their insurance company, Bankers Standard Insurance Company (hereinafter BSI), their home inspector, Blake Pre-Purchase [*2]Consultants, Inc. (hereinafter Blake), and the defendants. Against the defendants, the plaintiffs alleged, inter alia, breach of contract on the theory that the Bernsteins certified that the house was "free of damage, mold, infestation and other defects." After motion practice BSI and Blake settled with the plaintiffs. The Bernsteins then moved for summary judgment dismissing the amended complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiffs appeal.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the second cause of action, to recover damages for breach of contract. The plaintiffs allege that the defendants breached the provision in the rider to the contract which stated that the defendants were not aware of any mold or infestation. However, once title to the property closed and the deed was delivered, "any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger" since there was no "clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed" (Ka Foon Lo v Curis, 29 AD3d 525, 526 [internal quotation marks omitted]). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the relevant portion of the rider survived the closing. Furthermore, "New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment" (Jablonski v Rapalje, 14 AD3d 484, 485; see Rojas v Paine, 101 AD3d 843, 845). While the plaintiffs submitted an affidavit from a mold remediation specialist who concluded that the defendants must have been aware of the alleged mold condition and actively concealed the odor of mold in the home, the affidavit was speculative and conclusory (see Senatore v Epstein, 128 AD3d 794). In addition, the plaintiffs' submission of pest control service slips failed to raise a triable issue of fact as to whether the defendants actively concealed an alleged infestation of mice in the home.

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the third cause of action, to recover damages for negligence. A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the defendants violated a legal duty independent of the contract. Since the defendants' legal duty did not spring from circumstances extraneous to the contract, the negligence cause of action must be dismissed as duplicative of the breach of contract cause of action (see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678).

Finally, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the fourth cause of action, to recover damages for negligent misrepresentation. "A claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148). Here, the defendants demonstrated that there was no special or privity-like relationship between themselves and the plaintiffs in this arm's length transaction (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 663). Moreover, the defendants established that the alleged misrepresentations they made were not extraneous or collateral to the contract (see Heffez v L & G Gen. Constr., Inc., 56 AD3d 526). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, we agree with the determination granting the defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them."

SPECIFIC PERFORMANCE ON SALE OF HOME - SELLER IS DECEASED

Caldara v Monti, 2018 NY Slip Op 07283, Decided on October 31, 2018, Appellate Division, Second Department:

"On January 14, 2015, the plaintiff commenced an action against Robert Monti (hereinafter the decedent) for specific performance of a written contract which the plaintiff alleged was entered into by the parties on August 2, 2013 (hereinafter the prior action). The plaintiff alleged that, pursuant to the written contract, the decedent agreed to sell an undeveloped parcel of land located in Hauppauge (hereinafter the subject property) to the plaintiff for the sum of $150,000. On January 15, 2015, the plaintiff, unaware that the decedent had died on May 16, 2014, filed a notice of pendency of the prior action against the subject property (hereinafter the 2015 notice of pendency). Subsequently, on October 29, 2015, the defendant Alice M. Monti, as executrix of the decedent's estate (hereinafter the executrix), sold the subject property to the defendants Sergio Lobato and Silvia Lobato (hereinafter together the Lobatos).

At some point in time, the plaintiff learned of the death of the decedent and thereafter commenced this action in January 2016 against the executrix and the Lobatos and filed another notice of pendency against the property. The Lobatos moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them and to cancel the notices of pendency. The executrix separately moved pursuant to CPLR 3211(a)(1), (7), and (8) to dismiss the complaint insofar as asserted against her. The Supreme Court, inter alia, granted the Lobatos' motion and granted those branches of the executrix's motion which were to dismiss the first cause of action, [*2]seeking specific performance of the contract, and the fourth cause of action, seeking rescission of the deed conveying the subject property to the Lobatos, insofar as asserted against her. The plaintiff appeals.

We agree with the Supreme Court that, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the complaint failed to state a cause of action for either specific performance or rescission of the deed (see Rojas v Paine, 101 AD3d 843, 846; see also Acocella v Bank of N.Y. Mellon, 127 AD3d 891, 892-893). The prior action and the 2015 notice of pendency were legal nullities because of the decedent's death in 2014 (see Marte v Graber, 58 AD3d 1). Thus, the Lobatos were bona fide purchasers for value of the subject property since neither the prior action nor the 2015 notice of pendency provided the Lobatos with "knowledge of facts that would lead a reasonably prudent purchaser to make inquiry" (Berger v Polizzotto, 148 AD2d 651, 652, quoting Morrocoy Mar. v Altengarten, 120 AD2d 500, 500 [internal quotation marks omitted]; see Chiulli v Reiter, 173 AD2d 672, 673; Skoler v Rimberg, 20 AD2d 580, 581)."

A FIGHT OVER THE SALE OF A HOME

Brisk v Bloch, 2018 NY Slip Op 06712, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff and the defendant owned residential property across the street from each other in Brooklyn. In March 2012, they entered into two contracts, one for each property, in which the plaintiff agreed to pay the defendant $649,990 for the defendant's home, and the defendant agreed to pay the plaintiff $499,990 for the plaintiff's home. The transactions were contingent on the defendant obtaining a mortgage within 60 days of the execution of the contracts. If the defendant were unable to do so, she was permitted to cancel the contracts in writing within five business days after the deadline for obtaining a mortgage. The defendant's applications for a mortgage were denied and her attorney sent a letter dated July 18, 2012, to the plaintiff's attorney cancelling the contracts. Neither the plaintiff nor her attorney responded in writing. In November 2012, the defendant's attorney sent a letter to the plaintiff's attorney with a check for the reimbursement of title search expenses, which was required upon termination of the contracts. Neither the plaintiff nor her attorney objected.

Thereafter, in early 2013, both parties listed their properties for sale with the same real estate broker, and the defendant received an offer to purchase her property from a third party. In April 2013, the plaintiff sent the broker an offer to buy the defendant's house for $1,335,000. In May 2013, the plaintiff sent a letter to the defendant stating that she still had a contract on the defendant's home which was in full force and effect. In June 2013, the defendant entered into a contract of sale with the third-party buyer. The plaintiff then commenced this action seeking specific [*2]performance and damages for breach of contract, and filed a notice of pendency against the defendant's property. The defendant answered the complaint and asserted counterclaims for, inter alia, an award of attorneys' fees.

The plaintiff moved for summary judgment on her cause of action for specific performance, which the Supreme Court denied. Thereafter, following a nonjury trial, the court found that the plaintiff's conduct after receiving the defendant's letter of cancellation indicated that she accepted the defendant's termination of the contracts. The court rendered judgment in the defendant's favor and struck the notice of pendency. The court also dismissed the defendant's counterclaim for an award of attorneys' fees.

We agree with the Supreme Court's denial of the plaintiff's motion for summary judgment on her cause of action for specific performance, which is brought up for review on this appeal from the judgment (see CPLR 5501[a][1]). The plaintiff failed to meet her prima facie burden of demonstrating that "she was ready, willing, and able to perform . . . her obligations under the contract, regardless of any alleged anticipatory breach by the defendant" (Aliperti v Laurel Links, Ltd., 27 AD3d 675, 676; see Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439).

" In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses'" (BNG Props., LLC v Sanborn, 153 AD3d 1221, 1221-1222, quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). "Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations" (Bennett v Atomic Prods. Corp., 132 AD3d 928, 930; see BNG Props., LLC v Sanborn, 153 AD3d at 1222; Neiss v Fried, 127 AD3d 1044, 1046).

Here, we agree with the Supreme Court's determination that the plaintiff accepted the defendant's termination of the contracts. The credible evidence adduced at trial established that neither the plaintiff nor her attorney objected to the termination, the plaintiff later placed her property on the market, and she made an offer to purchase the defendant's property for more than double the purchase price set forth in the parties' contracts. The first time the plaintiff took steps to enforce her rights under the contract was after such conduct and nearly one year after the defendant's letter of cancellation. The plaintiff's conduct evinces an intent to abandon the contracts (see Savitsky v Sukenik, 240 AD2d 557, 559; Jones v Trice, 202 AD2d 394, 395). Accordingly, the complaint was properly dismissed and judgment rendered in the defendant's favor.

We agree with the Supreme Court's determination to dismiss the defendant's counterclaim for an award of attorneys' fees. A promise to pay attorneys' fees to the prevailing party cannot be clearly implied from the language of the contracts (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 492; Goldman v Citicore I, LLC, 149 AD3d 1042, 1045-1046; 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988, 990)."