Seller has no duty to disclose: New York law does not impose a duty on a seller of real property to disclose information concerning the property. See, Renkas v. Sweers, 10 Misc.3d 1076(A), 814 N.Y.S.2d 892 (Sup. Ct. Monroe Co), “Active concealment is some conduct, more than mere silence, by the seller that may create a duty to disclose information concerning the property (Gizzi at 881; Bethka v. Jensen, 250 A.D.2d 887,888 [3d Dept.1998] ). To recover damages for active concealment, “the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor” (Jablonski at 485).
Any potential fraud claim to be brought against a seller for failing to disclose a lawsuit involving the property and its circumstances would fail. Facts which are accessible as a matter of public record bar a claim of justifiable reliance necessary to sustain a cause of action for fraud. Grumman Allied Industries, Inc. v. Rohr Industries, Inc., 748 F.2d 729, 737 (2d Cir.1984); Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 603, 157 N.E.2d 597, 601 (1959); Most v. Monti, 91 A.D.2d 606, 456 N.Y.S.2d 427, 428 (2d Dept.1982).
To the extent that there may be “latent” defects in the building, a duty to disclose a latent defect concerning the premises may be based (post-closing and upon later discovery) on the theory that where a buyer is not able to discover the defect in question through ordinary inspection and would not be willing to purchase the property if he or she knew of it, then a contract that is procured without disclosing such a defect is procured by fraud and misrepresentation. See, Young v. Keith, 112 A.D.2d 625, 492 N.Y.S.2d 489 (3d Dep’t 1985); McMillen v. Marzacano, 277 A.D. 977, 100 N.Y.S.2d 240 (1st Dep’t 1950). These allegations would require a high burden of proof.
copyr. 2013 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
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