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Petrillo v. Bachenberg

Supreme Court of New York
655 A.2d 1354 (1995)


Bachenberg (defendant), a real estate broker, went in with a partner to purchase land from Rohrer. Bachenberg received reports from Rohrer’s attorney, Herrigal, describing the results of previously conducted percolation tests. Local regulations required proof of two successful percolation tests as a prerequisite for installation of a septic system. Herrigal gave Bachenberg two pages of test reports. The first page showed only one successful result out of 22 first-round tests. The second page represented a composite report, prepared by Herrigal, which listed the first successful test along with another successful result obtained during a second round of testing. Viewed separately, the second page appeared to indicate that two out eight percolation tests were successful when, in fact, only two out of 30 were successful. Bachenberg listed the property for sale and included only the second page of the test results in the sale package he gave to Petrillo (plaintiff). Herrigal represented Bachenberg in negotiations with Petrillo and drafted a purchase agreement that allowed Petrillo 45 days to conduct independent percolation tests and rescind the contract. Petrillo signed and gave Bachenberg a $16,000 down payment. After getting unsatisfactory percolation test results, Petrillo sought to rescind the contract and demanded the return of her down payment. Bachenberg refused and accused Petrillo of breaching the contract. Petrillo sued both Bachenberg and Herrigal for breach of contract, fraud, and misrepresentation. The trial court concluded that Herrigal did not owe any duty to Petrillo under the circumstances and dismissed the claims against him. Herrigal appealed, and the appellate court ruled in favor of Petrillo. Herrigal petitioned for review by the state supreme court.

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