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COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT).

The Second Department determined the plaintiffs had stated causes of action against the sellers (the Lyubarskys) of a condominium for fraudulently concealing mold and water damage in the condominium and in the common areas. The complaint also alleged plaintiffs’ attorney committed malpractice in representing them in the purchase. The court explained the how the doctrine of caveat emptor (buyer beware) relates to the allegations in the complaint:

“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”… . “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”… . “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” … .

Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference… , the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff’s efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building … . Razdolskaya v Lyubarsky, 2018 NY Slip Op 02817, Second Dept 4-25-18

​REAL ESTATE (COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/FRAUD (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/CAVEAT EMPTOR  (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/NEGLIGENCE (ATTORNEYS, REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/LEGAL MALPRACTICE (REAL ESTATE,  COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/ATTORNEYS (REAL ESTATE, MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))

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