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Christensen v. Fashion-Fain Homes12/15/2005
ashion-Fain's motion for summary judgment dismissing all of the causes of action against it is denied, without prejudice, with the exception of the dismissal of the negligence and strict product's liability causes of action, previously addressed. The court finds there are factual issues pertaining to the reasonableness of the parties' conduct as aforementioned. Counsel for Fashion-Fain submits that plaintiff entered into the contract at her own risk, having inspected the unassembled home on two prior occasions, and cites Richardson v. United Funding, Inc., 16 AD3d 570(2d Dept., 2005). In Richardson, the home buyer did not have an expert inspect the home before she purchased the same, and her post-purchase expert's report indicated at least some of the problems were discoverable upon reasonable inspection. It is not clear at this early stage of litigation what was or should have been apparent to the plaintiff in its unassembled condition. In particular, the must and moisture of a moldy, wet interior might not be apparent in the home where the two sides are apart, but would become so after being sealed together. The gentleman who assembled the home on behalf of Fashion Fain, Allan LeClair, identified problems that would not have been visible, ie, mold and moss in the subfloor; visible water/moisture in the insulation; mold/mildew on drywall backing; and a half inch differential between the flooring of the two halves. (Plaintiff's Ex. B) Thus, whether the plaintiff acted with "due diligence" is yet another question of fact. (See, Refermat submission dated November 9, 2005).
The plaintiff has also asserted claims for fraud and breach of General Business Law 349 against Fashion-Fain in her eleventh and twelfth causes of action. She sufficiently alleges a material misrepresentation was made to her, to induce her to buy the home, to wit, that it was unassembled, exposed to the elements for three months and she subsequently learned it had been exposed for years. Her allegations, particularly at this early stage of the action, sufficiently allege misrepresentation, reasonable reliance and deceptive conduct. See George v. Lumbrazo, 184 AD2d 1050 (4th Dept., 1992); Stephens v. Sponholz, 251 AD2d 1061(4th Dept., 1998).
The cross motion by the plaintiff for attorney's fees under CPLR 8303-a because of the purported frivolous nature of the motion, is denied. The movants were partially successful in their application. Fashion Fain's motion for attorney fees and/or sanctions is denied.
This constitutes the decision, judgment and order of the court.
SO ORDERED.
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