Defendants, The City of Geneva and Matthew Horn ("defendants"), brought this motion for summary judgement pursuant to CPLR § 3212 seeking dismissal of each and every cause of action asserted by plaintiffs Todd Powers and Lindsay Powers ("Plaintiffs") in their Amended Complaint dated March 20, 2018. Oral argument was held on February 14, 2020.

At oral argument, plaintiffs conceded that defendant Matthew Horn was acting pursuant to his discretionary authority as City Manager and is entitled to immunity in a civil suit for such acts. Plaintiffs' causes of action are therefore dismissed as to defendant Matthew Horn.

Similarly, plaintiffs conceded to defendant's arguments and did not oppose dismissal of [*2]plaintiffs': second cause of action alleging fraud; third cause of action alleging fraud and violation of Real Property Law Article 14; fourth cause of action alleging punitive damages; fifth cause of action alleging negligent infliction of emotional distress; and, sixth cause of action alleging deprivation of procedural due process. Accordingly, plaintiffs' second, third, fourth, fifth and sixth causes of action as against The City of Geneva are dismissed.

This leaves only plaintiffs' first, seventh and eight causes of action alleging negligence, negligent concealment, and negligent misrepresentation, respectively, as against The City of Geneva (hereafter "defendant") for decision by the Court.

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see also Potter v Zimber, 309 AD2d 1276 [4th Dept 2003]). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003][citing Alvarez, 68 NY2d at 324]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the responsive papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]; see also Hull v City of N. Tonawanda, 6 AD3d 1142, 1142-43 [4th Dept 2004]). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the non moving party (See Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [4th Dept. 2004]). The court's duty is to determine whether an issue of fact exists, not to resolve it (see Barr v County of Albany, 50 NY2d 247 [1980); Oaliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989]).

Initially, the Court finds that defendant was engaged in a proprietary function, as opposed to a governmental function, when it sold the property known as 56 Wadsworth in the City of Geneva to plaintiffs and defendant is subject to the ordinary rules of negligence (Applewhite v Accuhelath, Inc., 21 NY3d 420, 425 [2013]).

"A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) the defendant made a false representation that it should have known was false; and (3) reasonable reliance on the information (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; Eiseman v State of New York, 70 NY2d 175, 187 [1987]; Shillington v Riley, 2008 NYMisc 10064, *9 [2008 Sup Ct, NY Co]; Hydro Investors, Inc. v Trafalgar Power Inc., 227 F.3d 8, 20 [2d Cir 2000][citing Eiseman v State of New York for elements of negligent misrepresentation including that the defendant made a false representation that he or she should have known was incorrect]).

Defendant argues that plaintiff here cannot establish privity or a special relationship giving rise to a duty, citing Rosnerv Bankers Standard Ins. Co., 172 AD3d 1257 (2d Dept 2019) for the proposition that no special relationship or privity-like relationship exists between two parties in an arms length transactions for the sale of property. Defendant's reliance is misplaced. Rosner holds that where the alleged misrepresentation occurs within the contractual terms, and [*3]the contract ceases to exist upon closing of the transaction through the doctrine of merger, if there are no extraneous or collateral misrepresentations, a cause of action for negligent misrepresentation cannot be maintained, as there is no common law duty to disclose in an arms length transaction (Rosner, 172 AD3d at 1250-1260).

As noted, the alleged misrepresentation in Rosner occurred in the terms of the sale contract (Rosner, 172 AD3d at 1259). The breach of contract action on the misrepresentation arising from the contract was extinguished by the doctrine of merger when title closed (id.). Plaintiff's negligence action in Rosner failed because a negligence action cannot be maintained on the facts constituting breach of contract (Rosner, 172 AD3d at 1259 ["A simple breach of contract is not to be considered a tort unless legal duty independent of the contract itself has been violated"]. As there was no legal duty arising extraneous to the contract, the negligence action failed (Rosner, 172 AD3d at 1259). That left only the negligent misrepresentation claim.

The Rosner court then searched for a misrepresentation extraneous or collateral to the contract and found none (Rosner, 172 AD3d at 1260). Having found no extraneous statements, the court further found there was no duty on the seller to have made any such statements as to condition this being an arms-length transaction (Rosner, 172 AD3d at 1260). Thus there were no extraneous or collateral statements and the negligent misrepresentation claim also failed (Rosner, 172 AD3d at 1260; See also Auble v Doyle, 38 AD3d 1264, 1266 (4th Dept. 2007) ("claim for negligent misrepresentation fails as a matter of law because it is not based on circumstances extraneous to the performance of the contract").

Here, however, the actionable alleged misrepresentation did not occur within the contract but came as part of defendant's resolution authorizing the sale and was extraneous or collateral to the contract. Where sellers voluntarily undertake to provide information to a buyer, even though there is no obligation to do so in an arms length transaction, a duty arises to use reasonable care to impart correct information where reliance on that information is foreseeable and plaintiff reasonably relied upon the information provided (Kimmell v Schaefer, 89 NY2d 257, 263 [1996]["duty to speak with care exists when 'the relationship of the parties, arising out of contract or otherwise, [is] such that in morals and good conscience the one has the right to rely upon the other for information"' (quoting International Prods. Co. v Erie R. R. Co., 244 NY 331, 338 [1927]; Houlihan/Lawrence, Inc. v Duvali 228 AD2d 560, 561 [2d Dept 1996]).

Plaintiffs contend that defendant made an affirmative representation in a resolution approving the sale that the property was "fit for redevelopment." Defendant establishes prima facie entitlement to judgment with evidence that this statement was mere "boilerplate" and referred only to the zoning of the property, citing statements in an examination before trial (EBT) of the City Assessor, Patrick G. Grimaldi (p. 55, Ins. 2-6) and of the City Attorney, David Lee Foster, Esq. (p. 65, Ins. 9-25, p. 66) in EBT on October 29, 2018.

Plaintiffs, however, raise a question of fact with evidence in admissible form of the EBT statements made by the City Manager, Defendant Matthew Horn on June 22, 2018 that a property could not be represented as "fit for redevelopment" if it contained lead contaminated soil (pp. 84, 104, 106, 128, 168-170).

The court finds that defendant has shown prima facie entitlement to summary judgement with by showing that plaintiffs' injuries were not caused by the soil contamination. Defendant [*4]presents the Affidavit of Dr, Robert E. Todd, a board certified neurologist who conducted an independent medical examination of plaintiff Todd Powers. Dr. Todd reviewed extensive medical records of Mr. Powers and found that none of his providers attributed his symptoms to the toxic effects of lead and/or arsenic exposure. Rather, Dr. Todd opined that plaintiff's symptoms were attributable to other conditions suffered by Mr. Powers, that of Hashimoto's Thyroiditis and sleep apnea.

Defendant also submits the affidavit of Dr. McCabe, a PhD toxicologist who opines that there was no evidence that Mr. Powers was exposed to high levels of lead from breathing lead containing dust or ingesting lead-contaminated soil. Dr. McCabe notes Mr. Powers medical records are devoid of data supporting an elevated blood lead level or body burden of lead, that is, there were no hematological markers or urinary markers typical of high lead exposure. Dr. McCabe notes that none of the soil samples collected from 56 Wadsworth Street had lead levels that exceeded the lead standards for non-play areas.

Plaintiff in response, raises questions of fact on causation with the affidavits of plaintiffs medical expert Dr. Robert Knapp, M.D., and the affidavit of William R. Sawyer, a PhD toxicologist. Dr. Knapp does not agree that Mr. Powers symptoms can be attributed to Hashimoto's Thyroiditis as such does not explain Mr. Powers symptoms of confusion, memory loss, or transient catatonia or spells of dissociation or his multiple gastrointestinal symptoms. Further, Mr. Powers medical providers reached similar conclusions. Similarly, Dr. Knapp opines that Mr. Powers symptoms cannot be explained by sleep apnea. In sum, Dr. Knapp opines within a reasonable degree of medical certainty that Mr. Powers is suffering from symptoms of illness caused by lead poisoning.

Dr. Sawyer, in sum, opines to a reasonable degree of scientific certainty that based upon his evaluation of the soil testing results and the extent of Mr. Powers exposure through personally removing ten inches of top soil and other activities on the property, Mr. Powers was exposed to lead levels well in excess of regulatory standards for safe exposure. Further, that Mr. Powers inhaled and ingested enough lead to cause his reported mental difficulties and gastrointestinal symptoms and those symptoms are most likely the result of lead toxicity.

This court cannot decide such a "battle of the experts" as a matter of law and summary judgment is precluded (see e.g., Jeannette S. v Williot, — AD3d —, 2020 NY Slip Op 00743, *2 [4th Dept 2020])["the affidavits submitted by Kaleida Health and plaintiff presented a classic battle of the experts precluding summary judgment"]; Elmes v Yelon, 140 AD3d 1009 [2nd Dept 2016]).

Any further contentions of defendant not addressed above are denied.