In January, 2004, the plaintiffs purchased a newly constructed home located at 156 Boundary Avenue, Staten Island, New York, from seller/contractor defendant Fleming Properties, LLC for $410,000. Defendant Bay Homes Realty, Inc. was the real estate broker and defendant Igor Fleyshmakher was the owner of Bay Homes. The plaintiffs moved into the house on June 6, 2004. After a heavy rain on June 11, 2004, the first floor of the home flooded. Thereafter, following any heavy rain, the first floor of the house flooded.

In December, 2004, the plaintiffs commenced this action sounding in breach of implied and express warranties, breach of contract, fraud, negligence, and recision. Issue was joined by service of an answer by all defendants. By notice of motion dated December 27, 2006, Fleming moved for summary judgment dismissing the complaint. The motion was adjourned to permit the completion of discovery. During this time, Bay Homes and Fleyshmakher's settlement offer was accepted by the plaintiffs. After the completion of discovery on February 28, 2007, the plaintiffs and Fleming were permitted to submit supplemental papers on the motion for summary judgment. The motion was marked fully submitted on April 3, 2007.

Fleming established its entitlement to judgment as a matter of law on the first, third, seventh and eighth causes of action sounding in breach of the housing merchant implied warranty, breach of contract, and breach of implied warranty of habitability. The contract of sale [*2]contained a limited warranty, which is valid under General Business Law § 777-b, and excludes any claim under either a theory of common-law implied warranty or common-law breach of contract (see, Fumarelli v. Marsam Dev., 92 NY2d 298 [1998]; Bedrosian v. Guzy, 32 AD3d 1194 [4th Dept. 2006]; Latiuk v. Faber Constr. Co., Inc., 269 AD2d 820 [4th Dept. 2000]).

Additionally, Fleming demonstrated that the fifth cause of action sounding in negligence and the sixth cause of action sounding in recision must be dismissed. Fleming may not be held liable on a tort theory of negligence because the plaintiffs' allegations that the house was carelessly constructed sound in breach of contract rather than tort (see, Rothstein v. Equity Ventures, LLC, 299 AD2d 472 [2d Dept. 2002]). Moreover, Fleming established that the plaintiffs no longer want to rescind the contract by submitting the transcript of the deposition of plaintiff Mayya Benfeld who testified that the plaintiffs wish to retain title of the property and are seeking monetary damages and/or repair of the home. The plaintiffs did not submit any evidence to raise a triable issue of fact on these causes of action.

Further, Fleming established a prima facie case for summary judgment on the second cause of action alleging breach of the limited warranty by submitting proof that the plaintiffs failed to timely file a notice of warranty claim (see, Biancone v. Bossi, 24 AD3d 582 [2d Dept. 2005]; Repecki v. Parex Inc., 300 AD2d 292 [2d Dept. 2002]; Rothstein v. Equity Ventures, 299 AD2d 474 [2d Dept. 2002]). In opposition, however, the plaintiffs raised triable issues of fact as to whether Fleming failed to provide the plaintiffs with the claim form as required by the limited warranty and whether Fleming waived this requirement by responding to the plaintiff's oral notification of the problem (see, Tiffany at Westbury Condominium v. Marelli Development Corp., 34 AD3d 787 [2d Dept. 2006]; Rosen v. Watermill Development Corp., 1 AD3d 424 [2d Dept. 2003]).

Finally, Fleming demonstrated its entitlement to judgment as a matter of law on the fourth cause of action sounding in fraud. Generally, a cause of action alleging fraud does not arise when the fraud relates to a breach of contract (see, Tiffany at Westbury Condominium v. Marelli Development Corp., 34 AD3d 787, supra; Biancone v. Bossi, 24 AD3d 582, supra). However, a cause of action sounding in fraud may lie against a seller when he actively conceals a defect (see, Jablonski v. Rapalje, 14 AD3d 484 [2d Dept. 2005]; Gizzi v. Hall, 300 AD2d 879 [3d Dept. 2002]). In opposition, the plaintiffs raised a triable issue of fact as to whether Fleming knew of the flooding problem and actively concealed it prior to the sale (see, Boyle v. McGlynn, 28 AD3d 994 [3d Dept. 2006]; Lohan v. Teja, 22 AD3d 647 [2d Dept. 2005]).

Accordingly, it is

ORDERED that the motion of defendant Fleming for summary judgment dismissing the complaint is granted to the extent that the first, third, fifth, sixth, seventh and eighth causes of action are dismissed, and in all other respects the motion is denied.

This is the Order of the Court.

E N T E R,

Dated: May 9, 2007

J.S.C.