SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

JOAN A. SMITH and

MEGAN J. SMITH

Plaintiffs,

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

FRANCISCO CORDERO

Defendants.

_____________________________________________

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

GERACE, J.

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

construction.

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

fraud.

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

SouthBayCenter,Inc.v.Butler,Herrick&Marshall, 43

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

_________________________________

JOSEPH GERACE

Supreme Court Justice

PAPERS CONSIDERED:

(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.