COUNTY OF NASSAU. Justice. Defendants.

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: HON. ZELDA JONAS Justice MARK THAILER and NANCY THAILER, - against - Plaintiffs, JULIE TAUB, individually and on behalf of HAL KNOPF REALTY, and HAL KNOPF REALTY, TRIAL/IAS PART 26 Index #15042/01 Sequence #:l & 2 Motion Date: January. 3,2002 Defendants. Notice of Motion Notice of Motion Affidavit in Opposition Affirmation in Support Supplemental Affirmation in Opposition _ This is a motion by defendant to dismiss the plaintiffs cause of action alleging fraud, misrepresentation, and collusion by a real estate agent and her broker and for a default judgment on a counterclaim against the plaintiffs attorney. The plaintiffs purchased a home in 1998 from Seymour and Nancy Kaston. The contract contained an unusual provision Which provided that the sellers warrant the house had not been flooded in the past ten years. This provision survived the closing. Defendants, Julie Taub and Hal Knopf Realty, were the listing agent and broker respectively and were paid a commission by the sellers. The asking price was $329,000,

2 but the plaintiffs at first countered with $277,500, and after an engineers report, the selling price dropped to $272,500. This indicates that the house may have been in need of some repair. The house, located at Knight Street, Oceanside, NY, was purchased by the plaintiffs on October 30, Some 18 months later, on April 2 1,2000, what the plaintiffs describe in the complaint as a moderate rainfall resulted in flooding of the basement. Upon lifting up the carpets, it was allegedly discovered that the floor was rotted from previous water damage. Apparently rainfall in the previous year and a half, whether moderate or otherwise, had not caused flooding. A lawsuit was filed against the sellers on August 3,2000, and this suit was started on September 15,2001, more than 13 months later. These two cases have not been consolidated. This case has become a procedural muddle due to the actions of the attorneys for both parties. It is unclear why the instant defendants were not named as defendants in the first suit or brought in by amendment to the complaint in that case. Further... complications arose when the attorney for the defendants attempted to serve a - counterclaim against the plaintiffs attorney for libel and slander and other assorted claims. Since the plaintiffs attorney is not a party to the action, it is a mystery to this Court how a counterclaim can be brought (CPLR 3 109). Perhaps a third-party complaint would have been the solution (CPLR 1007). Hal Knopf Realty is also claiming that it was never served and that defendant, Julie Taub, did not have authority to accept service on its behalf. But this defendant has n

3 not asked for a traverse hearing. The record is replete with other procedural and factual errors, misrepresentations, and an overall lack of professionalism and /or courtesy from both sides. But the bottom line is that the allegations against the agent and broker appear to be without merit. The complaint is totally devoid, except in the vaguest terms, of any wrongdoing on the part of the defendants. If anything, it clearly states a cause.of action against the sellers. Plaintiffs first cause of action contains allegations such as the defendants knew or should have known of the history of water damage on the premises and therefore the agents had a duty to disclose such defects. These are mere assertions without any supporting factual basis. CPLR Section 3212 (b) states as follows: (b) Supporting proof; grounds; relief to either party. A motion for sun-nnary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the-material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion. -3-

4 Applying the statute to these facts, the plaintiffs acknowledge that they knew this area of Oceanside was subject to a high incidence of flooding and damage due to the close proximity of water (Paragraph 49 of the amended complaint). The plaintiffs have not provided an affidavit setting forth any facts that support their bald allegation of fraud or duty to inform. The record is completely lacking any proof of misconduct by the defendants. It is hard to conceive that the defendants were in a conspiracy with the sellers when the engineers report dated June 24, 1998 (Defendant s Ex. F) states in pertinent part: Signs of previous water penetration (via foundation walls) were observed in areas of the basement. Realize that the sump numn observed is usually only installed if a flooding condition exists or is anticipated. (Its operation depends upon electricity.) Discharge line from pump may drain into the waste line that leaves the house. Although this is commonly done, it should drain into a drywell. At present, pump requires repair. In any case, even when operable, realize that this is a-very limited system and only a very small section of the basement is serviced. In fact, conditions conducive to water seepage/flooding in other areas have been discussed previously. (Emphasis supplied.) This report clearly shows the plaintiffs were informed of the condition before closing. It is irrelevant to this litigation against the brokers that the plaintiffs were able to extract a warranty from the sellers that the basement had not flooded in the previous 10 years. -4-

5 The plaintiffs have not provided an affidavit either from themselves or an expert alleging facts upon which a cause of action can be stated against the defendants. While summary judgment is a drastic remedy, this remedy the full purpose for which it is intended. a court should not hesitate to give Given the statutory sanction, it is the duty of the court, not to test the sufficiency of the pleadings, but rather to go behind them to the very substance of the action and distinguish matters of law from matter of fact, material issues of fact from immaterial ones (Wanger v Zeh, 45 Misc.2d 93). A motion for summary judgment is properly granted where a seller failed to show that the real estate brokerage franchiser had actual knowledge of misconduct (FaZZe v. Metalios, 132 A.D.2d 518). See also, Jorgensen v. Century 21 Real Estate Corporation, (217 A.D.2d 533), where criminal activity of tenant constituted intervening event and proximate cause of plaintiffs injuries. Thus, the motion to dismiss is granted to the defendants. The defendants counterclaim and motion for adefault judgment on the counterclaim against plaintiffs attorney is also dismissed as moot. Dated:.z_// /: L-.y J.S.C.