Capasso v. McGowan
A seller who allegedly signs a property disclosure report that includes incorrect information about whether the property is located in a flood zone may not possess a continuing duty to disclose the correct information. On Dec. 14, 2006, the plaintiff, Carmine Capasso, allegedly purchased property from the defendant, Robert McGowan. In August 2011, the subject property allegedly was damaged, as a result of Tropical Storm Irene. The plaintiff subsequently discovered that the subject property is located in a flood zone. On Nov. 18, 2011, the plaintiff sued McGowan, alleging that he failed to disclose in the property disclosure report that the property was located in a flood zone. McGowan filed a motion for summary judgment and argued that the plaintiff did not file the complaint timely, prior to the expiration of the three-year statute of limitations for negligent misrepresentation and fraud. The plaintiff objected that McGowan possessed a continuing duty to disclose and that McGowan fraudulently concealed the facts. The court found that there was no evidence of fraudulent concealment and that the plaintiff failed to establish the statute of limitations has been tolled, as a result of any continuing duty to disclose. The plaintiff also alleged that McGowan breached the contract. The court upheld a provision in that contract that stated, "No provision or representation in the UPCD Report shall be construed to constitute a warranty in favor of Purchaser and none of the representations in the UPCD Report shall survive closing and delivery of the deed." The plaintiff's unjust enrichment claim was barred, because the parties signed a contract. The court granted the defendant's motion for summary judgment.