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Decided on May 26, 2006
Supreme Court, Richmond County

103518/05
Robert Gigante, J.
Upon the foregoing papers, the defendant's motion for dismissal of the complaint pursuant to CPLR 3211(a)(5) is granted.
Plaintiffs commenced this action to recover damages allegedly sustained by them when they discovered extensive termite damage in the home which they had purchased from defendants. According to plaintiffs, defendant knew of the vast termite infestation and resulting damage, yet actively concealed the condition in order to prevent plaintiffs from discovering same prior to closing.
It is undisputed that an earlier action for fraud was commenced by plaintiffs (under Index No.
[*2]10284/03) to recover damages resulting from the same infestation and arising out of the same transaction. Said action was dismissed by this Court on September 13, 2005, on the ground that plaintiffs had failed to show that they relied upon any representation made by defendant in the pre

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