Applying the “special facts” doctrine, a divided four-judge panel of the Appellate Division, First Department, affirmed a ruling that rejected the dismissal of a property case where the buyer claimed the seller hid substantial defects in a 115-unit apartment building.
In a 26-page opinion issued on Thursday, Justice Angela Mazzarelli (See Profile), writing for the three-judge majority, said, “it is impossible to determine at this stage of the proceedings whether it would truly have been practical for plaintiff, prior to taking possession of the building, to do the requisite testing, some of it possibly destructive, that would have been necessary to reveal the alleged defects.”
