In an October 11, 2011 decision by Justice Pines, the court granted defendant Getty’s motion for summary judgment dismissing the complaint against it, and dismissed the complaint against non-moving defendant Salib. Pursuant to a purchase agreement, the plaintiffs were to acquire a gas station business from Salib. Plaintiffs also entered into a lease of the real property on which the gas station was located with Getty, the owner thereof. The plaintiffs’ suit alleged that Getty defrauded them into purchasing the business, asserting two causes of action for fraud, and a third for negligent misrepresentation. The suit centered on a proposed public condemnation of part of the property that arose after the purchase agreement was signed but before the closing, which would have prevented its future use as a gas station. The plaintiffs alleged that they were never informed of the condemnation and that both defendants knew about and purposely concealed it from them.
The court held that Getty sustained its prima facie showing because the plaintiffs could have discovered the condemnation with the use of due diligence, as it was a matter of public record and part of a press release to numerous media outlets. The court then found that plaintiffs failed establish any material issues of fact because their allegation that Getty promised improvements to the property, including new gas tanks, could not have been justifiably relied upon in light of the pending condemnation. After searching the record pursuant to its ability under CPLR 3212(a), the court held that the plaintiffs also had no claims against Salib. The court again reasoned that even if Salib knew of and purposefully concealed the condemnation from the plaintiffs, it was a widely publicized matter of public record before the closing.
Khindri v. Getty Petroleum Mktg., Inc., Sup Ct, Sup Ct, Suffolk County, October 13, 2011, Pines, J, Index No. 39158/08