Case brief: template
|Case name:||Jeffrey M. Stambovsky, Appellant, v. Helen V. Ackley et al., Respondents|
|Court:||Supreme Court of New York, Appellate Division, First Department|
|Citation; Date:||169 A.D.2d 254; 572 N.Y.S.2d 672; 1991|
|Trial court:||Appeal court (for appeal cases only):|
|Plaintiff:||Stambovsky -- buyer||Appellant:||Ackley|
|Defendant:||Ackley -- seller||Respondent:||Stambovsky|
|Facts of the case:|
|Plaintiff alleges that Ackley
and her real estate broker, defendant Ellis Realty, made material misrepresentations of
the property in that they failed to disclose that Ackley believed that the house was
haunted by poltergeists. Moreover, Ackley shared this belief with her community and the
general public through articles published in Reader's Digest (1977) and the local
newspaper (1982). In November 1989, approximately two months after the parties entered
into the contract of sale but subsequent to the scheduled October 2, 1989 closing, the
house was included in a five-house walking tour and again described in the local newspaper
as being haunted.
Prior to closing, plaintiff learned of this reputation and unsuccessfully sought to rescind the $ 650,000 contract of sale and obtain return of his $ 32,500 down payment without resort to litigation. The plaintiff then commenced this action for that relief and alleged that he would not have entered into the contract had he been so advised and that as a result of the alleged poltergeist activity, the market value and resaleability of the property was greatly diminished. Defendant Ackley has counterclaimed for specific performance.
|Remedy sought:||Plaintiff promptly commenced this action seeking rescission of the contract of sale.|
|Court opinion (including key issues and arguments):|
Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in
Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.
 The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack. Not being a "local", plaintiff could not readily learn that the home he had contracted to purchase is haunted. Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers' Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted. More to the point, however, no divination is required to conclude that it is defendant's promotional efforts in publicizing her close encounters with these spirits which fostered the home's reputation in the community. In 1989, the house was included in a five-home walking tour of Nyack and described in a November 27th newspaper article as "a riverfront Victorian (with ghost)." The impact of the reputation thus created goes to the very essence of the bargain between the parties, greatly impairing both the value of the property and its potential for resale.
New York law fails to recognize any remedy for damages incurred as a result of the seller's mere silence, applying instead the strict rule of caveat emptor. Therefore, the theoretical basis for granting relief, even under the extraordinary facts of this case, is elusive if not ephemeral
the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.
It has been suggested by a leading authority that the ancient rule which holds that mere nondisclosure does not constitute actionable misrepresentation "finds proper application in cases where the fact undisclosed is patent, or the plaintiff has equal opportunities for obtaining information which he may be expected to utilize, or the defendant has no reason to think that he is acting under any misapprehension." However, with respect to transactions in real estate, New York adheres to the doctrine of caveat emptor and imposes no duty upon the vendor to disclose any information concerning the premises unless there is a confidential or fiduciary relationship between the parties or some conduct on the part of the seller which constitutes "active concealment." Normally, some affirmative misrepresentation is required to impose upon the seller a duty to communicate undisclosed conditions affecting the premises.
"while the law courts would permit no recovery of damages against a vendor, because of mere concealment of facts under certain circumstances, yet if the vendee refused to complete the contract because of the concealment of a material fact on the part of the other, equity would refuse to compel him so to do, because equity only compels the specific performance of a contract which is fair and open, and in regard to which all material matters known to each have been communicated to the other"... Common law is not moribund.... Where fairness and common sense dictate that an exception should be created, the evolution of the law should not be stifled by rigid application of a legal maxim.
It should be apparent, however, that the most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property's ghoulish reputation in the community. Therefore, there is no sound policy reason to deny plaintiff relief for failing to discover a state of affairs which the most prudent purchaser would not be expected to even contemplate
Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity. Any other outcome places upon the buyer not merely the obligation to exercise care in his purchase but rather to be omniscient with respect to any fact which may affect the bargain. No practical purpose is served by imposing such a burden upon a purchaser. To the contrary, it encourages predatory business practice and offends the principle that equity will suffer no wrong to be without a remedy.
Defendant's contention that the contract of sale, particularly the merger or "as is" clause, bars recovery of the buyer's deposit is unavailing. Even an express disclaimer will not be given effect where the facts are peculiarly within the knowledge of the party invoking it. ... As broad as this language may be, a reasonable interpretation is that its effect is limited to tangible or physical matters and does not extend to paranormal phenomena. Finally, if the language of the contract is to be construed as broadly as defendant urges to encompass the presence of poltergeists in the house, it cannot be said that she has delivered the premises "vacant" in accordance with her obligation under the provisions of the contract rider.
In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee.
dissent: if the doctrine of caveat emptor is to be discarded, it should be for a reason more substantive than a poltergeist. The existence of a poltergeist is no more binding upon the defendants than it is upon this court.
|Disposition of case:|
ECONOMIC ANALYSIS OF THE CASE
|Efficiency/incentive issues discussed in the court opinion:|
|Other efficiency/incentive issues relevant to the case:|
|Assessment of the economic consequences of the court decision:|
| "We do not want a
system in which people who happen to have information highly relevant to the value of what
they are selling... have an incentive to withhold it...."
The fact that no 'rational' person would pay less for for the properties on account of these facts was irrelevant; the courts accepted the 'subjectivity' of values, a cornerstone of freedom of contract and modern economic theory. P265