Jablonskis Case Summary

McDowell will likely have success in a summary judgment motion because it is possible that a jury could find for McDowell on the alleged facts presented. A motion for summary judgment requires the plaintiff to present the existence of a triable issue of fact. See Jablonski v. Rapalje, 14 A.D.3d 484, 486-87 (N.Y. App. Div. 2005) (affirming denial of summary judgment because the buyer pled sufficient facts to allege a general issue of material fact). While many New York courts sometimes describe fraudulent concealment as involving a five-element test, see Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421 (1996), real estate transactions present the law differently, see Jablonski, 14 A.D.3d at 485. New York enforces the doctrine of caveat emptor (“buyer beware”), normally imposing no duty on the seller to disclose in an arm’s length real estate transaction. See Platzman
See Daly v. Kochanowicz, 67 A.D.3d 78, 86 (N.Y. App. Div. 2009). Even in opting for the credit, the seller may still be liable for omitting a material fact if their conduct rises to a level of active concealment. See id. at 87. Insofar as the claim for the fraudulent concealment of the bunker, the New York haunted house statute will not be discussed. See 11 N.Y. Jur. 2d Brokers §79 (2017) (describing the types of stigma that do not constitute as material defects in a property). McDowell has a better claim for the fraudulent concealment of the bunker, rather than the stigma to her property. Additionally, to have a claim of active concealment, the buyer must prove the seller thwarted the buyer’s efforts to fulfill duties under the doctrine of caveat emptor. See Jablonski, 14 A.D.3d at 485. As instructed for this memo, potential remedies will not be