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Pesce v. Leimsider

Facts Alleged Show Plaintiffs Had Cognizable Claim; Dismissal Reversed, Matter Reinstated

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DECISION & ORDER

*1 Appeal from an order of the Civil Court of the City of New York, Richmond County (Lizette Colon, J.), entered June 11, 2015. The order converted a motion by defendant Richard J. Leimsider to dismiss the complaint pursuant to CPLR 3211 (a) into a motion for summary judgment and, upon conversion, granted summary judgment dismissing the complaint insofar as asserted against defendant Richard J. Leimsider and, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider.ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, in effect, sua sponte, granted summary judgment dismissing the complaint insofar as asserted against defendant Lydia Leimsider is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,ORDERED that the order is reversed, without costs, the motion by defendant Richard J. Leimsider to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) is denied, so much of the order as, in effect, sua sponte, dismissed the complaint insofar as asserted against defendant Lydia Leimsider is vacated, and the complaint, insofar as asserted against defendants Richard J. Leimsider and Lydia Leimsider, is reinstated.In August 2010, plaintiffs purchased a one-family house from Richard J. Leimsider and Lydia Leimsider (defendants). At the closing, defendants’ representative gave plaintiffs a $500 credit in lieu of a Property Condition Disclosure Statement, in accordance with Real Property Law §465. Shortly after the closing, plaintiffs discovered water damage and rotted wood behind some of the walls of the premises. In December 2010, plaintiffs commenced this action in the

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