Carter v. Cain

Order unanimously reversed, [3] on the law, with costs, and motion granted. Memorandum: Special Term erred in denying defendants’ motion to dismiss the second cause of action for breach of an implied warranty of habitability. The conveyance from defendants to plaintiffs was pursuant to a contract for the sale of a completed house in which defendants had resided for approximately three years. Cases such as De Roche v Dame (75 AD2d 384, lv dismissed 51 NY2d 821) and Centrella v Holland Constr. Corp. (82 Misc 2d 537), where newly constructed residences were purchased from the owners-builders, do not apply. Any implied warranty is barred by Real Property Law § 251 (see, Spano v Perry, 59 Mise 2d 1062). (Appeal from order of Supreme Court, Genesee County, Pine, J. — dismiss cause of action.) Present — Dillon, P. J., Hancock, Jr., Callahan and Green, JJ.