Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated October 26, 2005. The order granted defendants' motion to dismiss the complaint for failure to state a cause of action and denied as moot plaintiff's cross motion to place the action on the trial calendar.

Order affirmed without costs.

In this action, plaintiff seeks to recover damages based on defendants' alleged fraudulent concealment of, inter alia, improper renovations and electrical and plumbing work, all in violation of the Town Code of the Town of Islip. Plaintiff appeals from an order which granted defendants' motion to dismiss the complaint for failure to state a
cause of action (CPLR 3211 [a] [7]) and denied as moot plaintiff's cross motion to place the action on the trial calendar.

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The facts alleged in the complaint are presumed to be true, and it is the role of the court to accord the plaintiff "the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, dismissal is warranted if documentary evidence conclusively establishes a defense to the asserted claims as a matter of law (Arnav Indus. Inc. Retirement Trust v Brown, Raysman, [*2]Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).

The instant complaint alleged that plaintiff, a licensed real estate broker, on or about September 12, 2002, with the assistance of counsel, entered into a contract with defendants to purchase the residential premises known as 104 Woodlawn Avenue, Ronkonkoma, New York, a home originally built in 1910, which, over the years, had undergone renovation and expansion. Prior to entering into the contract, plaintiff engaged an engineer to inspect the premises. Following review of the engineer's report, plaintiff, in lieu of repairs by the sellers, agreed to a reduction of $1,000 in the purchase price. In the contract, plaintiff acknowledged that he had fully investigated and inspected the property with due diligence, that he entered into the contract based solely upon his own inspection and investigation, that he did not rely on any representations by sellers or their representatives, that he was purchasing the property based on this inspection and investigation, and that he accepted the premises in its "as is" condition. The rider to the contract of sale provided, as relevant herein, that acceptance of the deed shall be deemed full performance and discharge of every obligation on the part of sellers to be performed pursuant to the agreement; that at or prior to the closing of title, sellers shall deliver to purchaser a certificate of occupancy or a certificate of compliance of the premises as it presently exists; and that the sellers, in lieu of providing the purchaser with a property condition disclosure statement, shall give the purchaser a $500 credit at closing. Thereafter, plaintiff, through his attorney, ordered a title report and a survey, which defendants used to obtain the required certificate. The certificate, issued by the Town of Islip, Department of Planning and Development on January 10, 2003, certified that the property with the improvements listed on the certificate, conforms substantially with the terms and requirements of the New York State Building Code and the Town of Islip Zoning Ordinance. The closing and transfer of the deed took place on or about January 24, 2003. Plaintiff further alleged that he has discovered, among other things, that the electrical work performed on the premises, an addition to the premises constructed by a remodeling company engaged by defendants, and certain plumbing work, were not in accordance with the Town Code. Plaintiff alleged that said defects were concealed, not easily discoverable and not disclosed by defendants, and that defendants breached the contract and perpetrated a fraud, rendering them liable to plaintiff for damages.

It is settled law in New York State that the seller of real property is under no duty to speak when the parties deal at arm's length. The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud (see Moser v Spizzirro, 31 AD2d 537 [1968], affd 25 NY2d 941 [1969]; Perin v Mardine Realty Co., 5 AD2d 685 [1957], affd 6 NY2d 920 [1959]). The buyer has the duty to satisfy himself as to the quality of his bargain pursuant to the doctrine of caveat emptor, which, in New York State, still applies to real estate transactions (Glazer v LoPreste, 278 AD2d, 198 [2000]; London v Courduff, 141 AD2d 803 [1988], appeal dismissed 73 NY2d 809 [1988]).

The facts as alleged, assuming that they are true, together with the documentary evidence submitted, do not establish active concealment so as to constitute fraudulent nondisclosure. In order to succeed on such a claim, a plaintiff must show that the defendant thwarted his efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor (see Platzman v Morris, 283 AD2d 561 [2001]; London v Courduff, 141 AD2d at 804). Here, there was no factual basis alleged to establish that defendant actively concealed the alleged defects of the house (see Jablonski v Rapalje, 14 AD3d 484 [2005]; Christiano v Chiarenza, 1 AD3d 1039 [2003]). [*3]

In view of the foregoing, the order dismissing plaintiff's complaint for failure to state a cause of action and denying as moot plaintiff's cross motion to place the action on the trial calendar is affirmed.

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 29, 2006