SUPREME COURT: COUNTY OF CHAUTAUQUA
JOAN A. SMITH and
MEGAN J. SMITH
vs Index No. H-10628
VACATION PROPERTIES, INC.;
THE BARDEN & ROBESON CORP.;
EUGENE HEIL CONSTRUCTION, INC.;
CARL MARTIN; ROSEMARY A. VILLARINI;
SONIA M. MALFA; AND
JOHN L. GOODELL
(John L. Goodell, Esq.
of Counsel) for Plaintiffs
PRICE, MILLER, EVANS & FLOWERS
(Samuel P. Price, Jr., Esq.
of Counsel) for Defendant
Vacation Properties, Inc.
LYMAN & LYMAN
(Nathan M. Lyman, Esq.
of Counsel) for Defendant
Barden & Robeson
BRAUTIGAM & BRAUTIGAM, L.L.P.
(Daryl P. Brautigam, Esq.
of Counsel) for Defendant Martin
VILLARINI & HENRY, L.L.P.
(Robert M. Villarini, Esq.
of Counsel) for Defendants
Villarini and Cordero
EDWARD C. COSGROVE, ESQ.
Attorney for Defendant Malfa
DECISION AND ORDER
March , 1996
Defendant Martin, contractor, and Defendant Barden
& Robeson Corporation ("Barden"), supplier of materials,
move for summary judgment on the grounds the complaint does
not state a cause of action against them.
The question presented on these motions is whether an
action based on fraud in the construction of a home can be
brought against the contractor and materialmen by
subsequent purchaser of the home eleven years after its
Plaintiffs claim they bought their home February 10,
1992; that it appeared to be in good repair and condition
and was represented by the seller and broker to be in good
condition; that after Plaintiffs purchased the house, they
found several serious concealed defects in the
construction, forcing them to make repairs of some
$100,000.00. They sued the former owners, real estate
agents, Barden, the company that provided the package home
and Defendant Martin, the contractor who built it. Even
though this is a motion for summary judgment, the
Plaintiffs failed to give or describe the specific problems
they encountered or the repairs they were required to make
or the source of and particulars of the damages they claim.
From the complaint, it is unclear on what basis
Plaintiffs are suing, but under any theory, i.e. breach of
contract, negligence, fraud, the statutes of limitation
have long passed.
In response to the motion, Plaintiffs' attorney claims
the suit is on fraud grounds, but neglected to provide the
Court with details or specifics of any fraud and what
needed to be corrected or changed.
The Plaintiffs contend the statute of limitation in
this case did not begin to run until they personally
discovered the fraud or had a reasonable opportunity to do
so; that this presents a question of fact that cannot be
resolved on motion.
Plaintiffs claim the concealed defects constitute a
fraud on all subsequent purchasers giving them the right to
sue on discovery of the fraud even though that discovery
took place more than six years after the construction.
Plaintiffs cite Statev.GeneralMotorsInc., 120
Misc.2nd 371 466 N.Y.S.2d 124. In that action, the
Attorney General brought an action against the automobile
manufacturer under the executive law arising from an
defective component installed in various models of
manufacturer's automobiles. Interestingly, the Court in
that case dismissed the claim of the Attorney General for
breach of implied warranty on the grounds there was no
privity between the consumers and the manufacturer.
The complaints fall short of describing an action in
CPLR 3016(b) requires that fraud be pled with
specificity. As pointed out earlier, the complaint fails
to allege any specificity or the alleged misrepresentations
or misstatements; to whom they were made; how plaintiffs
relied on those statements; how they were damaged.
An attorney's affidavit alone is insufficient to
challenge a motion for summary judgment; it has no
probative force. David D. Siegel New York Practice, citing
Misc.2d 269, 250 N.Y.S.2d 863 (Sup.Ct., Nassau County,
1964). There was no affidavit presented by either plaintiff
in support of their motion.
The motions of Defendant Martin and Defendant Barden
and Robeson Corporation for dismissal of complaint against
them is granted, with $50.00 cost to each defendant.
The signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT.
Dated: March , 1996
Mayville, New York
Supreme Court Justice
(1) Plaintiff's Memorandum on Motion;
Dated: December 28, 1995
(2) Defendant's Notice of Motion;
Dated: December 15, 1995
(3) Defendant's Reply Affidavit
Dated: January 5, 1996
(4) Defendant's Notice of Crossmotion
Dated: December 29, 1995
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.