Appeal from a judgment of the Justice Court of the Town of Monroe, Orange County (Jack J. Rosenthal, J.), entered October 18, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $920.

Judgment affirmed without costs.

Plaintiff commenced this small claims action to recover the expenses he incurred as a result of his entering into a contract to purchase residential real property from defendants. At trial, plaintiff established that prior to entering into the contract of sale, defendants provided plaintiff with a Real Property Disclosure Statement in satisfaction of their obligations under article 14 of the Real Property Law (see Real Property Law § 462 [1]). Subdivision 2 of section 462 of the Real Property Law sets forth the disclosure form which, inter alia, instructs the seller to complete the form based upon the seller's "actual knowledge," and contains the seller's certification that "the information in the property condition disclosure statement is true and complete to the seller's actual knowledge as of the date signed by seller." Where a seller provides a Property Condition Disclosure Statement, upon his "willful failure to perform the requirements of the article," the seller shall be liable for the actual damages suffered by the buyer in addition to any other existing equitable or statutory remedy (Real Property Law § 465 [2]).

In the disclosure statement, defendants stated that no features of the property were shared in common with adjoining landowners, that there exists a septic system which required pumping twice in 20 years, the last time being 2002, and it has no known material defects. It is uncontroverted that the septic system was defective in that it was located partially on the property of a neighbor in violation of local law and that said fact was not disclosed in the disclosure statement. The court below, in finding defendants liable to plaintiff for damages, [*2]concluded that defendants failed to comply with the requirements as they were aware of the location of the septic system and deliberately failed to disclose same. We find no basis to disturb the lower court's findings. Accordingly, plaintiff was entitled to recover his actual damages arising out of the material misrepresentation set forth on the disclosure form, notwithstanding the "as is" clause contained in the contract of sale (see Calvente v Levy, 12 Misc 3d 38 [App Term, 9th & 10th Jud Dists 2006]), here the cost of the title search and the mortgage application fees.

In view of the foregoing, substantial justice was done between the parties in accordance with the rules and principles of substantive law (UJCA 1807).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 5, 2007