Preview
(FILED: WESTCHESTER COUNTY CLERK 1270172016 10:28 PM INDEX NO 58802/2016
NYSCEF DOC. NO. 30 RECEIVED NYSCEF 12/01/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
SCOTT ARCH, SUSAN ARCH, SHERRARD
ARCH and MARIANNE ARCH, Index No. 58802/16
Plaintiffs, AFFIDAVIT OF SUSAN ARCH
-v-
IN OPPOSITION TO MOTION
TO DISMISS OF DEFENDANT
MR. INSPECTIONS INC., ALBERT CAPELLINI HOULIHAN LAWRENCE INC.
and HOULIHAN LAWRENCE INC.,
Defendants.
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
SUSAN ARCH, being duly sworn, deposes and says:
1 I am a plaintiff herein, and I submit this Affidavit on behalf of all plaintiffs in
Opposition to the motion to dismiss of defendant Houlihan Lawrence Inc. (“Houlihan”).
2 Houlihan acted as dual agent in the underlying transaction, in which plaintiffs
purchased the house known as and located at 84 Friends Road, Yorktown Heights, New York
(the “Premises”) from Leona Vitolo (““Vitolo”). Houlihan was the broker for both Vitolo, as
the seller, and plaintiffs, as the purchasers.
3 There were two designated sales agents for Houlihan’s dual agency. John
Kincart, who worked out of Houlihan’s office in Jefferson Valley, New York, was the
sales
agent for Vitolo, and Joselyn Callahan, who worked out of Houlihan’s office in Bedford,
New
York, was the sales agent for plaintiffs. (See page “2” of the Houlihan Lawrence
Memorandum of Agreement, annexed as Exhibit “D” to Houlihan’s motion to dismiss).
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4. Plaintiffs’ Verified Complaint herein (annexed as Exhibit “A” to Houlihan’s
motion to dismiss) contains four (4) causes of action against Houlihan. All of these causes of
action concern certain hidden and/or undisclosed conditions in the Premises which are listed in
paragraph “9” of the Verified Complaint herein, and which affected, and/or continue to affect
the use, occupancy and habitability of the Premises. The Detrimental Conditions are as
follows:
(a) There has been an extensive water intrusion condition at the
Premises, whereby upon information and belief, water entered
the Premises through the side deck to the Premises and its
foundation;
(b) Moisture from the said water intrusion then collected in the
walls and attic of the Premises;
(©) As a result of the collection of moisture within the Premises,
there has been a mold condition in the Premises;
@d) In addition, there was soil under the Premises that was
contaminated with fuel oil from an oil leak that, upon
information and belief, occurred in or about 2003, years before
plaintiffs purchased the Premises. Upon information and belief,
the oil-tainted soil was discovered while work was being
performed in the laundry room of the Premises;
(©) Upon information and belief, there was at least two layers of
asbestos flooring in the kitchen of the Premises, underneath the
top linoleum flooring;
@ Upon information and belief, there is lead paint directly beneath
the top coat of paint in the kitchen of the Premises, and possibly
elsewhere in the Premises; and
(g) The exhaust chimney separated from and was coming away
from the Premises.
5 The First Cause of Action seeks damages based upon negligence, i.e., that
Houlihan breached its duty to care to plaintiffs, concerning (a) the discovery and/or disclosure
2 0f 5
of any or all of the numerous Detrimental Conditions in the subject premises which are listed
in paragraph “9” of the Verified Complaint, and (b) plaintiffs’ obligation to inform plaintiffs
of their rights and obligations under Article 14 of the New York Real Property Law (“RPL”),
which pertains to Property Condition Disclosure in the Sale of Residential Real Property.
6 Section 466 of the RPL obligated Houlihan “to timely (in any event, before the
buyer signs a binding contract of sale) inform such buyer of the buyer’s rights and obligations”
under RPL Article 14.
7. The Fourth Cause of Action seeks damages against Houlihan based upon fraud,
i.e., that Houlihan, inter alia, failed to divulge the existence of any or all of the Detrimental
Conditions in the Premises and/or failed to inform plaintiffs of their rights and obligations
under Article 14 of the RPL. Alternatively, Houlihan intentionally made representations that
would cause a reasonable person to believe that the Detrimental Conditions, any or all of them,
did not exist with the Premises. Plaintiffs relied to their detriment on these intentional
misrepresentations and/or fraudulent omissions, causing them to incur damages.
8 The Sixth Cause of Action seeks damages based upon a breach of contract
against Houlihan, that Houlihan entered into an agreement with plaintiffs to assist plaintiffs in
finding a house to purchase that did not have unlawful conditions in it, or conditions
deleterious to health and/or safety. In violation of that agreement, Houlihan showed plaintiffs
the Premises, which had the Detrimental Conditions, the existence of which were unlawful
and/or deleterious to health and safety. Moreover, Houlihan failed to inform plaintiffs of their
rights and obligations under Article 14 of the RPL. As a result of Houlihan’s breach of its
agreement with plaintiffs, plaintiffs have incurred damages.
3 0f 5
9 Finally, the Seventh Cause of Action seeks a declaratory judgment against all
defendants, that that defendants, any or all of them, (a) knew, or should have known, about the
existence of the Detrimental Conditions, any or all of them, in the Premises, prior to plaintiffs’
purchase of the Premises from Ms. Vitolo, (b) had an obligation to divulge this information to
plaintiffs prior to plaintiffs’ purchase of the Premises, and (c) breached an obligation to
plaintiffs pursuant to Section 466 of the RPL.
10. With regard to some of the specific allegations contained in the Affidavit of Zef
Camaj, Houlihan’s branch manager of their Yorktown Heights, New York office, paragraph
“8” of the Camaj Affidavit states, upon information and belief, that plaintiffs acknowledged
that they were “fully aware” of the physical condition of the Premises, based upon our own
investigation and inspection, and not upon any representations as to the physical condition of
the Premises given by the Seller (Ms. Vitolo) or her representatives.
11. Even if this statement were true, Houlihan wasn’t merely the Seller’s agent —
Houlihan was a dual agent, i.c., our agent as well. Houlihan owed plaintiffs a duty, and any
“investigation” that was done regarding the condition of the Premises incorporated whatever
Houlihan represented (or omitted) at or about the time that the Contract of Sale was entered
into.
12. Exhibit “F” to Houlihan’s motion consists of a fully signed “New York State
Disclosure Form for Buyer and Seller.” In that document, it states the following, with regard
to a “Dual Agent With Designated Sales Agents:”
If the buyer and the seller provide their informed consent
in writing, the principals and the real estate broker who
represents both parties as a dual agent may designate a sales
agent to represent the buyer and another sales agent to represent
the seller to negotiate the purchase and sale of real estate. A
4o0f 5
sales agent works under the supervision of the real estate
broker. With the informed consent of the buyer and the
seller in writing, the designated sales agent for the buyer will
function as the buyer’s agent representing the interests of
and advocating on behalf of the buyer and the designated
sales agent for the seller will function as the seller’s agent
representing the interests of and advocating on behalf of the
seller in the negotiations between the buyer and seller.
(emphasis supplied)
13. Houlihan, as the dual agent for both the Seller and the plaintiffs-Buyers,
through our designated sales agent, Joselyn Callahan, failed in its duty to represent “the
interests of and advocating on behalf of” the plaintiffs-Buyers.
14. Finally, while it may be true that the Seller gave plaintiffs a $500 credit in lieu
of a Property Condition Disclosure Statement (see Camaj Affidavit, paragraph “10,” and
Exhibit “G” to Houlihan’s motion), that credit inured to the benefit of the Seller, and not to the
benefit of Houlihan, who was our agent, as well as an agent for Seller.
WHEREFORE, for reasons set forth herein, as well as in the accompanying
Memorandum of Law, Houlihan’s motion to dismiss should be denied in its entirety, with such
other and further relief as this Court deems just and proper.
Swom to before me this
/ ST aay of De — ,2016
Ce el Dr
CAROL GARZILLO
NOTARY PUBLIC, STATE OF NEW YORK
QUALIFIED IN WESTCHESTER
Of /2-S720
NO.01GA6191769
Notary Public MY COMMISSION EXPIRES,
5 of 5
Preview
(FILED: WESTCHESTER COUNTY CLERK 1270172016 10:28 PM INDEX NO 58802/2016 NYSCEF DOC. NO. 30 RECEIVED NYSCEF 12/01/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER SCOTT ARCH, SUSAN ARCH, SHERRARD ARCH and MARIANNE ARCH, Index No. 58802/16 Plaintiffs, AFFIDAVIT OF SUSAN ARCH -v- IN OPPOSITION TO MOTION TO DISMISS OF DEFENDANT MR. INSPECTIONS INC., ALBERT CAPELLINI HOULIHAN LAWRENCE INC. and HOULIHAN LAWRENCE INC., Defendants. STATE OF NEW YORK ) )ss.: COUNTY OF WESTCHESTER ) SUSAN ARCH, being duly sworn, deposes and says: 1 I am a plaintiff herein, and I submit this Affidavit on behalf of all plaintiffs in Opposition to the motion to dismiss of defendant Houlihan Lawrence Inc. (“Houlihan”). 2 Houlihan acted as dual agent in the underlying transaction, in which plaintiffs purchased the house known as and located at 84 Friends Road, Yorktown Heights, New York (the “Premises”) from Leona Vitolo (““Vitolo”). Houlihan was the broker for both Vitolo, as the seller, and plaintiffs, as the purchasers. 3 There were two designated sales agents for Houlihan’s dual agency. John Kincart, who worked out of Houlihan’s office in Jefferson Valley, New York, was the sales agent for Vitolo, and Joselyn Callahan, who worked out of Houlihan’s office in Bedford, New York, was the sales agent for plaintiffs. (See page “2” of the Houlihan Lawrence Memorandum of Agreement, annexed as Exhibit “D” to Houlihan’s motion to dismiss). lof5 4. Plaintiffs’ Verified Complaint herein (annexed as Exhibit “A” to Houlihan’s motion to dismiss) contains four (4) causes of action against Houlihan. All of these causes of action concern certain hidden and/or undisclosed conditions in the Premises which are listed in paragraph “9” of the Verified Complaint herein, and which affected, and/or continue to affect the use, occupancy and habitability of the Premises. The Detrimental Conditions are as follows: (a) There has been an extensive water intrusion condition at the Premises, whereby upon information and belief, water entered the Premises through the side deck to the Premises and its foundation; (b) Moisture from the said water intrusion then collected in the walls and attic of the Premises; (©) As a result of the collection of moisture within the Premises, there has been a mold condition in the Premises; @d) In addition, there was soil under the Premises that was contaminated with fuel oil from an oil leak that, upon information and belief, occurred in or about 2003, years before plaintiffs purchased the Premises. Upon information and belief, the oil-tainted soil was discovered while work was being performed in the laundry room of the Premises; (©) Upon information and belief, there was at least two layers of asbestos flooring in the kitchen of the Premises, underneath the top linoleum flooring; @ Upon information and belief, there is lead paint directly beneath the top coat of paint in the kitchen of the Premises, and possibly elsewhere in the Premises; and (g) The exhaust chimney separated from and was coming away from the Premises. 5 The First Cause of Action seeks damages based upon negligence, i.e., that Houlihan breached its duty to care to plaintiffs, concerning (a) the discovery and/or disclosure 2 0f 5 of any or all of the numerous Detrimental Conditions in the subject premises which are listed in paragraph “9” of the Verified Complaint, and (b) plaintiffs’ obligation to inform plaintiffs of their rights and obligations under Article 14 of the New York Real Property Law (“RPL”), which pertains to Property Condition Disclosure in the Sale of Residential Real Property. 6 Section 466 of the RPL obligated Houlihan “to timely (in any event, before the buyer signs a binding contract of sale) inform such buyer of the buyer’s rights and obligations” under RPL Article 14. 7. The Fourth Cause of Action seeks damages against Houlihan based upon fraud, i.e., that Houlihan, inter alia, failed to divulge the existence of any or all of the Detrimental Conditions in the Premises and/or failed to inform plaintiffs of their rights and obligations under Article 14 of the RPL. Alternatively, Houlihan intentionally made representations that would cause a reasonable person to believe that the Detrimental Conditions, any or all of them, did not exist with the Premises. Plaintiffs relied to their detriment on these intentional misrepresentations and/or fraudulent omissions, causing them to incur damages. 8 The Sixth Cause of Action seeks damages based upon a breach of contract against Houlihan, that Houlihan entered into an agreement with plaintiffs to assist plaintiffs in finding a house to purchase that did not have unlawful conditions in it, or conditions deleterious to health and/or safety. In violation of that agreement, Houlihan showed plaintiffs the Premises, which had the Detrimental Conditions, the existence of which were unlawful and/or deleterious to health and safety. Moreover, Houlihan failed to inform plaintiffs of their rights and obligations under Article 14 of the RPL. As a result of Houlihan’s breach of its agreement with plaintiffs, plaintiffs have incurred damages. 3 0f 5 9 Finally, the Seventh Cause of Action seeks a declaratory judgment against all defendants, that that defendants, any or all of them, (a) knew, or should have known, about the existence of the Detrimental Conditions, any or all of them, in the Premises, prior to plaintiffs’ purchase of the Premises from Ms. Vitolo, (b) had an obligation to divulge this information to plaintiffs prior to plaintiffs’ purchase of the Premises, and (c) breached an obligation to plaintiffs pursuant to Section 466 of the RPL. 10. With regard to some of the specific allegations contained in the Affidavit of Zef Camaj, Houlihan’s branch manager of their Yorktown Heights, New York office, paragraph “8” of the Camaj Affidavit states, upon information and belief, that plaintiffs acknowledged that they were “fully aware” of the physical condition of the Premises, based upon our own investigation and inspection, and not upon any representations as to the physical condition of the Premises given by the Seller (Ms. Vitolo) or her representatives. 11. Even if this statement were true, Houlihan wasn’t merely the Seller’s agent — Houlihan was a dual agent, i.c., our agent as well. Houlihan owed plaintiffs a duty, and any “investigation” that was done regarding the condition of the Premises incorporated whatever Houlihan represented (or omitted) at or about the time that the Contract of Sale was entered into. 12. Exhibit “F” to Houlihan’s motion consists of a fully signed “New York State Disclosure Form for Buyer and Seller.” In that document, it states the following, with regard to a “Dual Agent With Designated Sales Agents:” If the buyer and the seller provide their informed consent in writing, the principals and the real estate broker who represents both parties as a dual agent may designate a sales agent to represent the buyer and another sales agent to represent the seller to negotiate the purchase and sale of real estate. A 4o0f 5 sales agent works under the supervision of the real estate broker. With the informed consent of the buyer and the seller in writing, the designated sales agent for the buyer will function as the buyer’s agent representing the interests of and advocating on behalf of the buyer and the designated sales agent for the seller will function as the seller’s agent representing the interests of and advocating on behalf of the seller in the negotiations between the buyer and seller. (emphasis supplied) 13. Houlihan, as the dual agent for both the Seller and the plaintiffs-Buyers, through our designated sales agent, Joselyn Callahan, failed in its duty to represent “the interests of and advocating on behalf of” the plaintiffs-Buyers. 14. Finally, while it may be true that the Seller gave plaintiffs a $500 credit in lieu of a Property Condition Disclosure Statement (see Camaj Affidavit, paragraph “10,” and Exhibit “G” to Houlihan’s motion), that credit inured to the benefit of the Seller, and not to the benefit of Houlihan, who was our agent, as well as an agent for Seller. WHEREFORE, for reasons set forth herein, as well as in the accompanying Memorandum of Law, Houlihan’s motion to dismiss should be denied in its entirety, with such other and further relief as this Court deems just and proper. Swom to before me this / ST aay of De — ,2016 Ce el Dr CAROL GARZILLO NOTARY PUBLIC, STATE OF NEW YORK QUALIFIED IN WESTCHESTER Of /2-S720 NO.01GA6191769 Notary Public MY COMMISSION EXPIRES, 5 of 5