        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1417
CA 12-00363
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


KENNETH POLK AND CARA POLK,
PLAINTIFFS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

JOSEPH GUGINO, SR., INDIVIDUALLY AND DOING
BUSINESS AS J. GUGINO CONSTRUCTION, JOSEPH
GUGINO, JR., INDIVIDUALLY AND DOING BUSINESS
AS J. GUGINO CONSTRUCTION, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (RICHARD M. SCHERER, JR.,
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

KAVINOKY COOK LLP, BUFFALO (SCOTT C. BECKER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered September 15, 2011. The order denied
defendants Joseph Gugino, Sr., individually and doing business as J.
Gugino Construction and Joseph Gugino, Jr., individually and doing
business as J. Gugino Construction’s pre-answer motion to dismiss the
complaint against them.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
with respect to the sixth cause of action against defendants Joseph
Gugino, Sr., individually and doing business as J. Gugino
Construction, and Joseph Gugino, Jr., individually and doing business
as J. Gugino Construction, and dismissing that cause of action against
them and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action against, inter
alia, Joseph Gugino, Sr., individually and doing business as J. Gugino
Construction, and Joseph Gugino, Jr., individually and doing business
as J. Gugino Construction (defendants) after the roof on their home
began leaking six months after they purchased the home. Defendants
had repaired the roof two years before plaintiffs purchased the home,
and defendants’ contract with the previous homeowners included a 10-
year guarantee for the workmanship. Supreme Court denied defendants’
pre-answer motion to dismiss the complaint against them.

     We conclude that the court should have granted that part of the
motion with respect to the sixth cause of action insofar as it alleges
                                 -2-                          1417
                                                         CA 12-00363

a breach by defendants of a duty to disclose, but otherwise properly
denied the motion. We therefore modify the order accordingly.
“Motions to dismiss should not be granted unless it is clear that
there can be no relief under any of the facts alleged in the
complaint” (H. M. Brown, Inc. v Price, 38 AD2d 680, 680). “ ‘[T]he
criterion is whether the proponent of the pleading has a cause of
action, not whether he has stated one’ ” (Leon v Martinez, 84 NY2d 83,
88; see Raquet v Travelers Cas. & Sur. Co., 2 AD3d 1310, 1311), and
plaintiffs’ allegations “must be assumed to be true” (Becker v
Schwartz, 46 NY2d 401, 408). Here, any duty to disclose may properly
be asserted only against defendant sellers and defendant agent (see
generally Platzman v Morris, 283 AD2d 561, 562), but the complaint
otherwise does not fail to state a cause of action against defendants
(see CPLR 3211 [a] [7]). We therefore modify the order accordingly.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
