Opinion
CA 03-00799.
November 21, 2003.
Appeal from an order of Supreme Court, Erie County (Makowski, J.), entered August 2, 2002, which granted defendant's motion seeking summary judgment dismissing the complaint and denied plaintiff's cross motion seeking leave to amend the complaint.
Shatkin Shatkin, Buffalo (Marc Shatkin of Counsel), for Plaintiff-Appellant.
Henry F. Wojtaszek, North Tonawanda, for Defendant-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby Ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint and properly denied plaintiff's cross motion seeking leave to amend the complaint. Although leave to amend a complaint should be freely given ( see CPLR 3025 [b]), where, as here the proposed amendment lacks merit, leave should be denied ( see Shellberry v. Albright, 281 A.D.2d 892, 892-893, lv dismissed in part and denied in part 97 N.Y.2d 650). Plaintiff purchased a house from defendant, who was his friend at the time. When he began to remodel the house, plaintiff discovered extensive structural and electrical deficiencies that were not visible before the removal of carpets, ceilings and sheet rock. Defendant did not advise plaintiff of any of those defects at the time of the sale. "The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud" ( London v. Courduff, 141 A.D.2d 803, 804, appeal dismissed 73 N.Y.2d 809). Here, plaintiff concedes that defendant did not make any express representations with respect to the defects that he discovered. Rather, plaintiff contends that defendant made only general comments, such as "it was a great house." Although a seller may be held liable for active concealment of a hidden defect ( see generally 17 E. 80th Realty Corp. v. 68th Assoc., 173 A.D.2d 245, 246), defendant established that the defects at issue here were created and concealed prior to his ownership of the house, when defendant's parents owned the house ( cf. Stephens v. Sponholz, 251 A.D.2d 1061; George v. Lumbrazo, 184 A.D.2d 1050, 1051, lv dismissed 81 N.Y.2d 759, rearg denied 81 N.Y.2d 835). Although defendant was living in the house when the renovations resulting in the defects were made, he was a child and a young adult at the time. Thus, defendant established that he neither actively concealed the defects of the house, nor intentionally or negligently failed to disclose those defects to plaintiff, as alleged in plaintiff's proposed amended complaint. Plaintiff failed to raise an issue of fact sufficient to defeat defendant's motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).