Fantigrossim v. Brannon Homes, Inc.

Appellate Division of the Supreme Court of New York

Fantigrossim v. Brannon Homes, Inc.

77 A.D.3d 1413, 909 N.Y.S.2d 240

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2010

StatusPublished

Cited by1 cases

This text of 77 A.D.3d 1413 (Fantigrossim v. Brannon Homes, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fantigrossim v. Brannon Homes, Inc., 77 A.D.3d 1413, 909 N.Y.S.2d 240 (N.Y. Ct. App. 2010).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.), entered August 31, 2009. The order, insofar as appealed from, granted in part the motion of defendant for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs entered into a contract with defendant for the purchase of residential property and the construction of a home and thereafter commenced this action seeking damages for, inter alia, breach of contract and fraud. Contrary to plaintiffs’ contention, Supreme Court properly granted that part of defendant’s motion for partial summary judgment dismissing the breach of contract cause of action insofar as it is based on the allegation that defendant was required by the contract to install nine-foot-wide garage doors but instead installed eight-foot-wide garage doors. Even assuming, arguendo, that nine-foot-wide garage doors were required by the [1414]*1414contract, we conclude that plaintiffs are deemed to have waived the right to assert that defendant breached the parties’ contract based on defendant’s deviation from that contractual specification inasmuch as such a deviation would have been obvious during plaintiffs’ preclosing inspection of the home. Indeed, plaintiffs “could surely see the size of the garage [doors] when title was accepted, and they should be presumed to have intended to have ... garage [doors] of that size” (Ting-Wan Liang v Malawista, 70 AD2d 415, 420 [1979]). Also contrary to plaintiffs’ contention, the court properly granted that part of defendant’s motion for partial summary judgment dismissing the fraud cause of action because it “arises out of the same facts that serve as the basis of the breach of contract cause of action and may not be independently asserted” (Schunk v New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915 [1997]). Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.

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Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.), entered August 31, 2009. The order, insofar as appealed from, granted in part the motion of defendant for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs entered into a contract with defendant for the purchase of residential property and the construction of a home and thereafter commenced this action seeking damages for, inter alia, breach of contract and fraud. Contrary to plaintiffs’ contention, Supreme Court properly granted that part of defendant’s motion for partial summary judgment dismissing the breach of contract cause of action insofar as it is based on the allegation that defendant was required by the contract to install nine-foot-wide garage doors but instead installed eight-foot-wide garage doors. Even assuming, arguendo, that nine-foot-wide garage doors were required by the [1414]*1414contract, we conclude that plaintiffs are deemed to have waived the right to assert that defendant breached the parties’ contract based on defendant’s deviation from that contractual specification inasmuch as such a deviation would have been obvious during plaintiffs’ preclosing inspection of the home. Indeed, plaintiffs “could surely see the size of the garage [doors] when title was accepted, and they should be presumed to have intended to have ... garage [doors] of that size” (Ting-Wan Liang v Malawista, 70 AD2d 415, 420 [1979]). Also contrary to plaintiffs’ contention, the court properly granted that part of defendant’s motion for partial summary judgment dismissing the fraud cause of action because it “arises out of the same facts that serve as the basis of the breach of contract cause of action and may not be independently asserted” (Schunk v New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915 [1997]). Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.

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Bluebook (online)

77 A.D.3d 1413, 909 N.Y.S.2d 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fantigrossim-v-brannon-homes-inc-nyappdiv-2010.

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