DiGennaro and Gurman Prevail on Pre-Answer Motion to Dismiss

June 12, 2019 | Professional Liability

Janice DiGennaro and Amanda Gurman successfully obtained dismissal of a complaint filed against a real estate broker client.

Plaintiff, a disgruntled home buyer, commenced an action for fraud and negligent misrepresentation against everyone involved in their home purchase, including our client, the listing broker for the property. The action was based on the defendants’ alleged failure to disclose and alleged efforts to conceal purported defects in the property prior to the purchase.

In dismissing the claims against our client, the Court held that the broker had no duty to disclose facts to the home purchaser and in the absence of such a duty, the home purchase could not maintain a claim of negligent misrepresentation against the broker.  In any event, the Court found that the explicit merger clause in the contract of sale barred the negligent misrepresentation claim, as the home purchaser explicitly disclaimed reliance on any oral or written representations concerning the condition of the property in that clause.

The Court further held that Plaintiff’s complaint, which merely stated that the broker “upon information and belief” actively concealed supposed defects in the property, failed to adequately plead the elements of fraud, much less with the specificity required under the heightened pleading burden of CPLR 3016(b).

While Plaintiff attempted to obtain reversal of the Court’s decision through a motion to reargue, the Court denied Plaintiff’s motion, upholding its prior decision as well-supported by the facts and law.

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  • Janice J. DiGennaro
  • Amanda Griner

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