Lenihan v. Muhametja

Opinion

Lenihan v Muhametja

2026 NY Slip Op 05298

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

James Lenihan, et al., appellants,

v

Sami Muhametja, etc., et al., respondents, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2025-00809, (Index No. 35176/21)

Valerie Brathwaite Nelson, J.P.

Paul Wooten

Janice A. Taylor

Elena Goldberg Velazquez, JJ.

The Law Office of Wayne A. Gavioli, P.C., Nanuet, NY, for appellants.

Schloss & Schloss, PLLC, Nanuet, NY (Jonathan B. Schloss of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Keith J. Cornell, J.), dated December 10, 2024. The order, insofar as appealed from, granted those branches of the motion of the defendants Sami Muhametja, Sami Construction, and Sami Construction Group which were for summary judgment dismissing the causes of action alleging breach of contract and fraud insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Sami Muhametja, Sami Construction, and Sami Construction Group which was for summary judgment dismissing the cause of action alleging fraud insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs entered into a contract of sale for the purchase of certain residential property located in Rockland County with the defendant Sami Muhametja. Muhametja partially demolished a house on the property and then rebuilt and expanded the house and a garage. Closing occurred in December 2020. In October 2021, the plaintiffs commenced this action against Muhametja, Sami Construction, and Sami Construction Group (hereinafter collectively the defendants), among others, to recover damages for breach of contract and fraud, among other things. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated December 10, 2024, the Supreme Court, inter alia, granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging breach of contract and fraud insofar as asserted against them. The plaintiffs appeal.

To recover damages for fraud, "the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). "In the context of real estate transactions, a claim of fraudulent misrepresentation must be analyzed within the doctrine of caveat emptor" (R. Vig Props., LLC v Rahimzada, 213 AD3d 871, [*2]872; see Gordon v Connie Profaci Realty, LLC, 231 AD3d 712, 714). "New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment" (R. Vig Props., LLC v Rahimzada, 213 AD3d at 872 [internal quotation marks omitted]; see Gordon v Connie Profaci Realty, LLC, 231 AD3d at 714). "Instead, the buyer has the duty to satisfy himself or herself as to the quality of [the] bargain pursuant to the doctrine" (Gordon v Connie Profaci Realty, LLC, 231 AD3d at 714 [alterations and internal quotation marks omitted]). "If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property" (R. Vig Props., LLC v Rahimzada, 213 AD3d at 873 [internal quotation marks omitted]; see Gordon v Connie Profaci Realty, LLC, 231 AD3d at 714). "To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor" (R. Vig Props., LLC v Rahimzada, 213 AD3d at 873 [internal quotation marks omitted]; see Gordon v Connie Profaci Realty, LLC, 231 AD3d at 714).

Here, the defendants' own submissions raised triable issues of fact as to whether they actively concealed certain defects in the property, and the plaintiffs' submissions raised further triable issues of fact as to whether the defendants actively concealed certain defects in the property, including the failure to have sealed the foundation and properly filled the foundation under the new garage (see Clement v Delaney Realty Corp., 83 AD3d 881, 882; see also New Hackensack Realty, LLC v Lawrence Dev. Realty, LLC, 226 AD3d 799, 802-803; Striplin v AC & E Home Inspection Corp., 218 AD3d 513, 514; Razdolskaya v Lyubarsky, 160 AD3d 994, 996-997). Thus, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud insofar as asserted against them.

The plaintiffs contend that the Supreme Court erred in determining that the cause of action alleging breach of contract insofar as asserted against the defendants was precluded by the merger doctrine (see Brooklyn Tabernacle v Thor 180 Livingston, LLC, 242 AD3d 813, 815). The plaintiffs, however, fail to cite to any provision of the contract of sale that was breached, that survived delivery of the deed, or which was a collateral undertaking to the conveyance (see Guoba v Sportsman Props., Inc., 200 AD3d 658, 660; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115-116). Accordingly, the plaintiffs have failed to demonstrate that the court erred in granting that branch of the defendants' motion which was for summary judgment dismissing cause of action alleging breach of contract insofar as asserted against them.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court