X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Hancock Estabrook, LLP, Syracuse (Christina M. Verone Juliano of Counsel), for Defendant-Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Brady J. O’Malley of Counsel), for Plaintiffs-Respondents. Appeal from an order of the Supreme Court, Ontario County (Charles A. Schiano, Jr., J.), entered March 2, 2020. The order, insofar as appealed from, denied in part the motion of defendants for summary judgment dismissing the amended complaint. It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion seeking dismissal of the negligence cause of action and the negligent concealment cause of action, and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for personal injuries allegedly sustained by Todd Powers (plaintiff) from exposure to contaminants on a parcel of real property that plaintiffs purchased from the City of Geneva (defendant). Defendant appeals from an order that denied in part its motion for summary judgment dismissing the amended complaint against it. For reasons stated in the decision and order at Supreme Court, we reject defendant’s contention that the court erred in denying the motion with respect to the negligent misrepresentation cause of action. We note only that, contrary to defendant’s repeated contention, plaintiffs’ attorney did not concede that defendant owed no duty of care. Plaintiffs’ attorney conceded at oral argument that there is “no statutory duty” under “the Real Property Law,” but that concession applied to the duty to provide a “property condition disclosure statement” (§ 462), from which defendant is exempt (see § 463 [11]). Thus, the concession does not impact the common-law tort causes of action at issue on appeal, which do not arise from the Real Property Law. We agree with defendant, however, that the court erred in denying the motion with respect to the negligent concealment cause of action, and we therefore modify the order accordingly. The ” ‘negligent concealment’ cause of action is included in and duplicative of the[ ] negligent misrepresentation cause of action” (Basso v. New York Univ., 2018 WL 2694430, *3 [SD NY, June 5, 2018, No. 16-CV-7295 (VN) (KNF)]; see generally Krobath v. South Nassau Communities Hosp., 178 AD3d 807, 808 [2d Dept 2019]), and arose from the same facts, thus the court should have dismissed the negligent concealment cause of action on that ground (see generally Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2d Dept 2005], lv denied 6 NY3d 701 [2005]). We also agree with defendant that the court erred in denying the motion with respect to the negligence cause of action, and we therefore further modify the order accordingly. That cause of action is based on allegations that plaintiff was injured due to a dangerous condition on the parcel of property that defendant sold to plaintiffs, i.e., chemical contamination, to which plaintiff was exposed after the sale. It is well settled that “[o]ne’s liability in negligence for the condition of land ceases when the premises pass out of one’s control before injury results. Such is the general rule” (Kilmer v. White, 254 NY 64, 69 [1930]). Thus, under that general rule, defendant’s liability for negligence based on a dangerous condition on the property ended when it sold the parcel to plaintiffs (see id.; Morris v. Freudenheim, 273 AD2d 885, 885 [4th Dept 2000]), and “liability may be imposed upon defendant only if the allegedly dangerous condition . . . existed at the time [it] relinquished possession and control of the premises ‘and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known’ ” (Morris, 273 AD2d at 885-886; see Bittrolff v. Ho’s Dev. Corp., 77 NY2d 896, 898 [1991]). Here, defendant met its burden on the motion of establishing that any injury allegedly sustained by plaintiff was caused by exposure after defendant sold the property. In response, “plaintiff[s have] offered nothing to show that [they, as] the new owner[s,] did not have adequate time to discover and remedy such defects” (Bittrolff, 77 NY2d at 898; see generally Farragher v. City of New York, 26 AD2d 494, 496 [1st Dept 1966], affd 21 NY2d 756 [1968]; Copp v. Corning Glass Works, 114 AD2d 144, 147 [4th Dept 1986]). In light of our determination, defendant’s remaining contentions are academic.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2021

October 13, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

General Counsel Conference East 2021

September 22, 2021 - September 23, 2021
New York, NY

GCC East addresses General Counsel trends in regulatory, data protection, tech management, legal operations, and leadership.


Register

New Jersey Legal Awards 2021

September 23, 2021
Virtual, NJ

New Jersey Law Journal honors lawyers leaving a mark on the legal community in New Jersey with their dedication to the profession.


Register

Litigation Attorney - Miami, Florida

Miami, Florida, United States

0-5 year associate attorney needed for civil litigation firm in Miami area. Great opportunity for advancement. Salary will be commensurate...


Apply Now ›

Partner And Associate Openings -New York And New Jersey

New York, New York, United States

Boutique healthcare firm that defends businesses and professionals in healthcare is expanding, offering top dollar compensation for the righ...


Apply Now ›

New York Probate Attorney

New York, New York, United States

A&G Capital Plus (www.agcapitalplus.com), a heir finder company, based in Tallahassee, FL is looking for a licensed NY probate lawyer to han...


Apply Now ›

BARTON GILMAN LLP

09/14/2021
CLT Web

Barton Gilman Expands Into Connecticut


View Announcement ›

BARTON GILMAN LLP

09/14/2021
TLI Web

Barton Gilman LLP is excited to announce that its expansion into Philadelphia


View Announcement ›

STARR, GERN, DAVISON & RUBIN

09/13/2021
NJLJ Web

STARR, GERN, DAVISON & RUBIN would like to congratulate Ira M. Starr as Partner and Ana Rita Ferreira as an Associate


View Announcement ›