Lopez v. Quincy 314 LLC

2024 NY Slip Op 33634(U)

• Court: New York Supreme Court, Kings County
• Decided: October 7, 2024
• Docket: Index No. 508216/2024
• Status: Unpublished

Opinion

Lopez v Quincy 314 LLC 2024 NY Slip Op 33634(U) October 7, 2024 Supreme Court, Kings County Docket Number: Index No. 508216/2024 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 10/09/2024 01:50 PM INDEX NO. 508216/2024 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/09/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - ·.--.n.:----·-,· · :-·---· ---- . . · :--·-----· .•. : · ---------·X·. DOUGLAS LOPEZ and VICTORIA BYRNES,

Plaintiffs, IndexNumber: 508216/2024 - against .. Hon. Carolyn E. Wade

QUINCY314LLC, SALEH HA.ROUNIAN, SHAHRYAR TORKAN, FARHAD RAHIMIAN, and DECISION AND ORDER COMPASS REALTY, INC, Defendants. ----------------~-. -· -·- ·-- ·-- .-----· ·-· --· ·---. -·. --.------ .--- .--~x Hon. CarolynE. Wade; JSC ..

Plaintiffs' Amended Complaint asserts causes of action for fraudulent concealment,

breach of contract, negligent misrepresentation, and breach of fiduciary duty against sellers and.

·their real estate broker in connection with the purchase of a 2-family Bed Stuy townhouse. The

Sellers; Defendants Quincy 314 LLC ("Quincy"), SalehHarourt:ian, ShahryarT0rkart, and

Fathad Rahimian (the "Quincy Members," together with Quincy, the "Quincy Defendants")

moved to dismiss the Complaint,,pursuantto CPLR §§ 3211 (a)(l) and (a)(7) (Motion Seq. #1)

(the "Motion''), and the Courthearcloralargument on the motion oh October 2, 2024.

For the reasons set forth herein, the Quincy Defenda,nts' Motion is DENIED.

On a motion to dismiss pursuant to CPLR § 321 l, the pleading is to be afforded a liberal

construction (see, CPLR § 3026). We accept the facts as alleged in the complaint as true, afford

plaintiffs the benefit of every possible favorable inference, and determine only whether the facts

as alleged fit within any cognizable legal theory(Leon v. Martinez, 84 NY2d 83, 87-88 [1994]

citirigMoronev. Moronei 50 NY2d481, 484 [1980];Rovellov. OrofinoRealty Co., 40 NY 2d

·633,634 [1976]). Whether a plaintiff can ultimately establish its allegations ''is notpl:Ui of the

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calculus" in determining a motion to dismiss (EBC I; Inc. v. Goldman, Sachs & Co., 5 NY3d 11

[2005]). A dismissal is warranted und·er CPLR § 32ll(a)(l)onlyifthedocum entruy evidence

submitted conclusively establishes a defense to the asserted claims as a matter of law (Heaney V.

Purdy, 29 NY2d 157 [1971]; Qureshiv Vital . Transportation,. Inc., 173 AD3d 1076, 1077 [2d

Dept 2019]).

Any deficiencies hi a complaint may be amplified by supplemental pleadings and other

evidence (AGCapitalFw1ding Partners, L.P. v. State St. Bank&Trust Co,, 5NY3d 582

[2005]; see also, Rovello, supra).

Here, the Quincy Defendants argue thatdocmrtentary evidence in the form ofthe

Contract of Sale establishes· a complete defense to Plaintiffs' claims, or that the claims are

otherwise barred by concepts of caveat emptor and merger. However,. affording Plaintiffs every

favorable inference, the Amended Complaint, as amplified by PlaintiffLopez's affirmation and

the professional reports and other evidence annexed thereto, state claims sufficient to survive the

Quincy I>efendants' motion.

The Plaintiffs allege that Quincy purchased the Premises in July 2022 fot $997,500,

·wfo~n itneeded a "full. gut tenovation," and then represented that it was "meticulously restored''

prior to selling it to Plaintiffs for $2,500,000.00 (:Amended Complaintat'1J'jJJ3-41). It identifies many concealed defective conditions in detail, including improperly sized ductwork; improper

insulation for cooling operations; tlue gas piping sections that were riot cortriected; improperly

coilnected, or cracked causing the leaking ofcarbon 1119noxide into the home; flue piping that

was not appropriately· sealedto prevent water intrusion; incorrectly sized refrigerant piping in

multiple concealed areas; concealed water damage, and concealed structural deficiencies

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(Amended Complain.tat,~ 29-31 ). These allegatiorts are then amplified by the Plaintiffs

Affirmation, which includes detailed reports artd photographs (see,. Lopez Aff, Exhibits E-H).

Thus, under the circumstances; the Plaintiffs have stated facts sufficient to plausibly

allege a fraudulent scheme engaged in by Quincy and the Quincy Members by which they

installed faulty systems and made only basic cosmetic repairs to the Premises; not the

comprehensive, "meticulous" and "modem" renovation that was advertised, so that they could

fraudulently ..flip" the property i11a short time to the Plaintiffs, an unsuspecting buyer, for a

profit of over $1.5 Million. Under the circumstances presented here, a fraudulent intent can be

inferred (see, DDJ Management, LLC v. Rhone Group, L.L.C., 78 AD3d 442; 443 [Pt Dept

2010]),

"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 anrt' s length,

unless there is some conduct on the part of the seller which cbnstiti.rtes active concealment"

(Striplinv. AC&EHome Inspection Corp;, 218 AD3d 513,514 [2d Dept2023] [citations

omitted]). To recover damages for active concealment, the Plaintiffs must show "in effect, that

the seller or the seller's agents thwartecl the plaintiffs efforts to fulfill his [or herJresponsibilities

fixed by the doctrine of caveat emptor." Id at514. In Striplin, the Second Department reversed a

trial court order that granted a motion to dismiss because the Amended Complaint alleged that

the Defendants actively concealed the existence of leaks. and water damage. Plaintiff was unable

to observe those conditions because Defendants had installed new materials to hide the extent of

the damage. The Court reaches the same .result here (see also, RazdolsJcaya v; Lyuhqrsky, 16:0

A.D3d 994, 996~97 [2dDept20f8]),

3.

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Therefore, this Court finds that the fraudulent concealment and negligent

misrepresentation claims are properly pled.

Moreover, since fraud is a recognized exception to the merger doctrine, the argument that

Plaintiffs' claims were merged into the deed is misplaced (West 90 th Owners Corp. v. Schlecter,

137 AD2d 456, 459 [I st Dept 1988]; TIAA Global Investments, LLC v. One Astoria Square LLC,

127 AD3d 75, 86 [1 st Dept 2015]). The Quincy Defendants' other assertions are unavailing at the

pleadings stage.

Conclusion

Accordingly, it is

ORDERED that Defendants Quincy 314 LLC, Saleh Harounian, Sharhryar Torkan, and

Farhad Rahimian's motion to dismiss the Amended Complaint is DENIED, and it is further

ORDERED that Defendants Quincy 314 LLC, Saleh Harounian, Sharhryar Torkan, and

Farhad Rahimian are directed to serve and file their respective Answers to the Amended Complaint

on or before November 29, 2024; and it is further

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7 , c::, r.n C, Date: October 2024 --c n I ...0 -g r-.. P1::!:j )> □ -< <, r- -P. fT1 :u SO ORDERED: &:" ~ N

ade, JSC HON. CAROLYNE. WADE JUSTICE OF THE SUPREME COURT

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