Hackett v. Morgan

18 A.D.3d 608, 794 N.Y.S.2d 685, 2005 N.Y. App. Div. LEXIS 5347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 2005
• Status: Published

Opinion

— In an action, inter alia, to recover damages for fraudulent misrepresentation, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered February 5, 2004, which granted the cross motion of the defendants Linda Morgan and Burbank Whittemore, Inc., for summary judgment dismissing the complaint insofar as asserted against them and denied, as academic, their motion to compel discovery.

Ordered that the order is affirmed, with costs.

The plaintiffs commenced this action to recover damages arising from their purchase of a house in Harrison. The defendants Linda Morgan and Burbank Whittemore, Inc. (hereinafter Burbank), were the real estate agents for the sellers. The plaintiffs alleged that Burbank fraudulently misrepresented and actively concealed the fact that the house was a prefabricated modular home.

In opposition to Burbank’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether Burbank engaged in actionable fraudulent misrepresentation or concealment of a material fact (see Polin v Brown Mem. Baptist Church, 295 AD2d 589, 590 [2002]; Glazer v LoPreste, 278 AD2d 198 [2000]).

The plaintiffs’ remaining contentions are without merit. Adams, J.P., Ritter, Mastro and Rivera, JJ., concur.