Indus. Risk Insurers v. Ernst, 224 A.D.2d 389 (N.Y. App. Div. 1996). · Go Syfert
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Indus. Risk Insurers v. Ernst, 224 A.D.2d 389 (N.Y. App. Div. 1996). Cases Citing This Book View Copy Cite
7 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Seldin v. Smith (nyappdiv, 2010-08-17)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Seldin v. Smith
N.Y. App. Div. · 2010 · confidence medium
Eastern owed no duty of care to the Zoumas defendants and there is no allegation that Eastern made any affirmative misrepresentations (see Industrial Risk Insurers u Ernst, 224 AD2d 389, 390 [1996]; see generally Long Is.
discussed Cited as authority (rule) Dembeck v. 220 Central Park South, LLC
N.Y. App. Div. · 2006 · confidence medium
A fiduciary relationship does not exist between parties engaged in an arm’s length business transaction (see id. at 19-20 ), which is normally the situation between landlord and tenant (see Industrial Risk Insurers v Ernst, 224 AD2d 389, 390 [1996]; Ja-Mo Assoc, v 56 Fulton St.
discussed Cited as authority (rule) State v. Robin Operating Corp.
N.Y. App. Div. · 2005 · confidence medium
Moreover, even if the claim were timely, ROC’s awareness of environmental problems at the site, the availability of the detailed files of the Department of Environmental Conservation and the absence of any fiduciary relationship imposing a duty to speak preclude any demonstration of justifiable reliance by ROC, a necessary element of its fraud claim (see CFJ Assoc. of N.Y. v Hanson Indus., 274 AD2d 892, 893-894 [2000]; see also Venezia v Coldwell Banker Sammis Realty, 270 AD2d 480, 481-482 [2000]; Industrial Risk Insurers v Ernst, 224 AD2d 389, 390 [1996]).
Retrieving the full opinion text from the archive…
Industrial Risk Insurers
v.
John L. Ernst, and Sol Niego Associates
Appellate Division of the Supreme Court of the State of New York.
Feb 5, 1996.
224 A.D.2d 389
1996 N.Y. App. Div. LEXIS 932
Cited by 7 opinions  |  Published

—In an action to recover damages for prop[*390] erty damage, the defendants John L. Ernst and Cedarhurst Joint Venture appeal from an order of the Supreme Court, Nassau County (Becker, J.) dated October 19, 1994, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, the motion of the defendants John L. Ernst and Cedarhurst Joint Venture for summary judgment is granted, the complaint and all cross claims are dismissed insofar as asserted against them, and the action against the remaining defendants is severed.

The plaintiffs subrogor, Pergament Distributors, Inc. (hereinafter Pergament), leased a store in a shopping center owned by the defendants John L. Ernst and Cedarhurst Joint Venture (hereinafter the appellants). In 1983, Pergament and the appellants entered into a new lease for additional space. Several months after Pergament had constructed and occupied an extension to its existing store, a water main located beneath the extension ruptured, flooding the store. The plaintiff, as subrogee of Pergament, commenced the instant action for damages alleging, in essence, that £he appellants had failed to disclose the existence of the water main to Pergament.

In order to hold the appellants liable, the plaintiff must first establish that they breached a duty toward Pergament. "Whether a duty exists presents a question of law to be determined by the court based upon the facts and circumstances of each case” (Hooper v Anderson, 157 AD2d 939, 940). We agree with the appellants that they breached no duty. Here, the parties dealt at arm’s length, no confidential or fiduciary relationship existed, there was no active concealment of the facts by the appellants and the existence of the water company’s easement could have easily been ascertained at all times by Pergament, its architect, and general contractor simply by examining the public records.

Under these circumstances, there is no basis upon which liability may be imposed on the appellants (see, Slavin v Hamm, 210 AD2d 831; LaBarbera v Marino, 192 AD2d 697; London v Courduff, 141 AD2d 803; Perin v Mardine Realty Co., 5 AD2d 685, ajfd 6 NY2d 920). Balletta, J. P., Ritter, Altman and Hart, JJ., concur.