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Pursuant to the Doctrine of Caveat Emptor, Seller of Home Was Not Obligated to Disclose Information About the Possibility of the Incursion of Golf Balls from the Neighboring Golf Course

The Second Department determined a complaint alleging fraudulent concealment against the seller of plaintiffs’ home (Glickenhous) was properly dismissed.  Plaintiffs bought property bordering a golf course.  After a tree bordering the course fell, golf balls landed on plaintiffs’ property.  The doctrine of caveat emptor required the dismissal of the complaint pursuant to CPLR 3211(a)(1) [documentary evidence utterly refutes allegations in the complaint] and CPLR 3211(a)(7) [pleading does not state a cause of action] :

“New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” … . “Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud” … . ” 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 responsibilities fixed by the doctrine of caveat emptor'” … . “Where the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations” … .

Here, Glickenhaus had no duty to disclose any information regarding the premises under the doctrine of caveat emptor … . Moreover, any risk to the property posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence, and the documentary evidence submitted on the motion demonstrates that any such concerns were a matter of public record not peculiarly within the knowledge of Glickenhaus … . Behar v Glickenhaus Westchester Dev Inc, 2014 NY Slip Op 07969, 2nd Dept 11-19-14

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