Online Payments

Need to speak to someone?
Give us a call.

(800) 734-0565

Meyer, Suozzi, English & Klein, P.C.

By using our website, you agree to the terms of our Privacy Policy


Active Concealment of Hidden Water Damage Preserves Fraud Claim in Face of Caveat Emptor Defense

Jul 10, 2023Litigation & Dispute Resolution

There are special considerations that apply to fraud claims in connection with real property sale transactions, especially where the buyer is alleging the seller concealed material information about the property. The doctrine of caveat emptor (let the buyer beware) embodies these particular requirements. See the Topic “Caveat Emptor” in this blog. In effect, in real property transactions, courts apply a heightened element of reasonable reliance.

Caveat Emptor

The principles were summarized in Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518 (2d Dep’t 2007), as follows:

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 (see Matos v Crimmins, 40 AD3d 1053 [2007]; Jablonski v Rapalje, 14 AD3d 484, 485 [2005]; Platzman v Morris, 283 AD2d 561, 562 [2001]; London v Courduff, 141 AD2d 803, 804 [1988]). The mere silence of the seller, without some act or conduct which deceived the buyer, does not amount to a concealment that is actionable as a fraud (see Matos v Crimmins, supra; Slavin v Hamm, 210 AD2d 831, 832 [1994]). To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the buyer must show, in effect, that the seller thwarted the buyer’s efforts to fulfill the buyer’s responsibilities fixed by the doctrine of caveat emptor (see Jablonski v Rapalje, supra; Platzman v Morris, supra).

So, the buyer must establish two elements: (1) the seller actively concealed some condition or aspect concerning the property; and (2) the matter concealed “thwarted”—somehow stood in the way, prevented or inhibited—the buyer from discovering what was concealed.

Read the full blog here.