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

425
CA 11-01740
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


MARTIN SAMPLE AND MARY ANN SAMPLE,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ELLEN YOKEL, DEFENDANT-RESPONDENT.


KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

HISCOCK & BARCLAY, LLP, ROCHESTER (GARY H. ABELSON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered April 21,
2011. The order and judgment granted the motion of defendant for
summary judgment dismissing the complaint.

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

     Memorandum: Plaintiffs, who purchased a home from defendant,
commenced this action seeking compensatory and punitive damages for
negligence, the alleged failure to perform the requirements of Real
Property Law § 465 (2) in conjunction with the sale of residential
real estate (hereafter, property), fraud, restitution and implied
indemnification. Plaintiffs appeal from an order and judgment
granting defendant’s motion for summary judgment dismissing the
complaint, and we affirm. We note at the outset that plaintiffs
conceded before the motion court that they had no viable cause of
action for the alleged failure to perform the requirements of Real
Property Law § 465 (2) (see generally Cacheiro v Middletown Enlarged
City School Dist., 29 AD3d 846, 846), and they do not address the
implied indemnification cause of action on appeal and thus are deemed
to have abandoned any issue with respect to it (see Ciesinski v Town
of Aurora, 202 AD2d 984, 984).

     We further note at the outset that we agree with plaintiffs that
Supreme Court erred in discrediting the affidavit of their expert.
“[O]pinion evidence must be based on facts in the record or personally
known to the witness” (Hambsch v New York City Tr. Auth., 63 NY2d 723,
725 [internal quotation marks omitted]) and, although plaintiffs’
expert did not personally inspect some of the property defects at
issue, his limited familiarity with the property goes “to the weight
                                 -2-                             425
                                                           CA 11-01740

of his . . . opinion as evidence, not its admissibility” (Matter of
State of New York v Blair, 87 AD3d 1327, 1328 [internal quotation
marks omitted]). Nevertheless, the error is of no moment inasmuch as
the expert addressed the construction of the deck, which was not at
issue, and he did not address the relevant issue whether defendant
concealed information concerning the condition of the deck.

     We conclude that the court properly granted that part of the
motion with respect to the cause of action for negligence, in which
plaintiffs alleged that defendant was negligent in failing, inter
alia, to provide an accurate disclosure of property defects in the
Property Condition Disclosure Statement. “It is well settled that
‘[a] claim for negligent misrepresentation requires the plaintiff[s]
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[s]; (2) that the information was
incorrect; and (3) reasonable reliance on the information’ ” (Mandarin
Trading Ltd. v Wildenstein, 16 NY3d 173, 180, quoting J.A.O.
Acquisition Corp. v Stavitsky, 8 NY3d 144, 148, rearg denied 8 NY3d
939). Even assuming, arguendo, that defendant had the requisite
relationship with plaintiffs that required her to disclose correct
information to plaintiffs concerning the property (see Meyers v Rosen,
69 AD3d 1095, 1096), we conclude that defendant met her initial burden
on that part of the motion by submitting evidence that the information
imparted to plaintiffs was correct and that, in opposition thereto,
plaintiffs failed to raise a triable issue of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562).

     Turning now to the fraud cause of action, it is well settled
that, “[t]o establish a cause of action for fraud, plaintiff[s] must
demonstrate that defendant[] knowingly misrepresented a material fact
upon which plaintiff[s] justifiably relied and which caused
plaintiff[s] to sustain damages” (Klafehn v Morrison, 75 AD3d 808,
810). “Although New York traditionally adheres to the doctrine of
caveat emptor in an arm’s length real property transfer . . ., Real
Property Law article 14 codifies a seller’s disclosure obligations for
certain residential real property transfers” (id.), including this
residential real property transaction (see § 461 [5]). 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[s] 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, defendant met her initial burden on that part
of the motion with respect to the fraud cause of action by submitting
evidence that she did not knowingly fail to disclose any defects in
the property, and in opposition plaintiffs failed to raise a material
issue of fact (see generally Zuckerman, 49 NY2d at 562).

     We further conclude that the court properly   granted that part of
the motion with respect to the restitution cause   of action. “ ‘[T]he
essential inquiry in any [cause of] action for .   . . restitution is
whether it is against equity and good conscience   to permit the
                                 -3-                           425
                                                         CA 11-01740

defendant to retain what is sought to be recovered’ ” (Sperry v
Crompton Corp., 8 NY3d 204, 216, quoting Paramount Film Distrib. Corp.
v State of New York, 30 NY2d 415, 421, remittitur amended 31 NY2d 678,
rearg denied 31 NY2d 709, cert denied 414 US 829). Here, defendant
met her initial burden by establishing that she was not enriched
through negligence or fraud in conjunction with the sale of the
property to plaintiffs, and plaintiffs failed to raise a triable issue
of fact (see Zuckerman, 49 NY2d at 562; cf. Abacus Fed. Sav. Bank v
Lim, 75 AD3d 472, 474-475).

     Finally, we conclude that the court properly dismissed the claim
for punitive damages. “Punitive damages are permitted when the
defendant’s wrongdoing is not simply intentional but evince[s] a high
degree of moral turpitude and demonstrate[s] such wanton dishonesty as
to imply a criminal indifference to civil obligations . . . The
misconduct must be exceptional, as when the wrongdoer has acted
maliciously, wantonly, or with a recklessness that betokens an
improper motive or vindictiveness . . . or has engaged in outrageous
or oppressive intentional misconduct or with reckless or wanton
disregard of safety or rights” (Ross v Louise Wise Servs., Inc., 8
NY3d 478, 489 [internal quotation marks omitted]). Here, there was no
misconduct on the part of defendant and, even assuming, arguendo, that
she engaged in wrongdoing, we conclude that this is not an
“exceptional” case in which punitive damages are warranted (id.).




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
