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

1282
CA 13-00587
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


JOHN F. MIKULSKI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RUSSELL M. BATTAGLIA, DEFENDANT-APPELLANT.


DIANE M. CIURCZAK, BUFFALO, FOR DEFENDANT-APPELLANT.

AMIGONE, SANCHEZ & MATTREY, LLP, BUFFALO (RICHARD S. JUDA, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered May 30, 2012. The order, among other things,
denied the cross motion of defendant for summary judgment dismissing
the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
fraudulent inducement and fraudulent misrepresentation, arising from
his purchase of a home from defendant. Defendant appeals from an
order that, inter alia, denied his cross motion for summary judgment
dismissing the amended complaint. We note at the outset that
defendant’s contention that he was entitled to dismissal of the
amended complaint pursuant to CPLR 3211 (a) (11) was raised for the
first time in his reply papers in Supreme Court. “The function of
reply papers is to address arguments made in opposition to the
position taken by the movant and not to permit the movant to introduce
new arguments in support of, or new grounds for the motion” (Dannasch
v Bifulco, 184 AD2d 415, 417). Thus, defendant’s contention was not
properly before the court (see Zolfaghari v Hughes Network Sys., LLC,
99 AD3d 1234, 1235, lv denied 20 NY3d 861).

     Even assuming, arguendo, that defendant met his initial burden on
that part of the cross motion with respect to the fraudulent
concealment cause of action by submitting evidence that he did not
knowingly fail to disclose any defects in the property (see generally
Sample v Yokel, 94 AD3d 1413, 1415), we conclude that plaintiff raised
a triable issue of fact in opposition (see generally Jablonski v
Rapalje, 14 AD3d 484, 485-486).

     We reject defendant’s contention that the court erred in denying
that part of the cross motion with respect to the fraud cause of
                                 -2-                          1282
                                                         CA 13-00587

action on the ground that it fails to meet the requirements of CPLR
3016 (b). The statute “requires only that the misconduct complained
of be set forth in sufficient detail to clearly inform a defendant
with respect to the incidents complained of” (Lanzi v Brooks, 43 NY2d
778, 780, mot to amend remittitur granted 43 NY2d 947, rearg denied 44
NY2d 733; see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178),
and that standard was met here. Furthermore, we agree with plaintiff
that the court otherwise properly denied that part of defendant’s
cross motion for summary judgment dismissing the fraud cause of action
on the merits. It is well settled that, “[t]o establish a cause of
action for fraud, plaintiff must demonstrate that defendant[]
knowingly misrepresented a material fact upon which plaintiff
justifiably relied and which caused plaintiff to sustain damages”
(Klafehn v Morrison, 75 AD3d 808, 810). False representation in a
property condition disclosure statement mandated by Real Property Law
§ 462 (2) “may constitute active concealment in the context of
fraudulent nondisclosure . . . , [but] to maintain such a cause of
action, ‘the buyer must show, in effect, that the seller thwarted the
buyer’s efforts to fulfill the buyer’s responsibilities fixed by the
doctrine of caveat emptor’ ” (Klafehn, 75 AD3d at 810). Here,
although defendant met his initial burden on that part of the cross
motion with respect to the fraud cause of action by submitting
evidence that he did not knowingly fail to disclose any defects in the
property (see generally Zuckerman v City of New York, 49 NY2d 557,
562), plaintiff raised a triable issue of fact (see generally id.).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
