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Damages reduced in 'sinking home' sale

Although a judge upheld a jury's finding that the sellers of a "sinking home" in Amherst had lied to buyers about the condition of the house, he also reduced the amount of damages awarded to the new owners.

State Supreme Court Justice Patrick H. NeMoyer, who presided over the jury trial, recently addressed several post-trial motions filed by attorneys for the sellers, the real estate firm and agent involved in the transaction and the buyers.

"We are disappointed in the reduction but otherwise we're pleased that Judge NeMoyer upheld the jury's findings," said James I. Myers, the attorney for buyers Karen and Anthony Regan, who still live at 107 Blue Heron Court.

In March, a jury found that sellers Elaine and Robert Altman had lied about the condition of the property, located in an area of north Amherst where homes are sinking or cracking because of poor soil conditions. Jurors also found that Hunt Real Estate and agent John Fox, who represented the Altmans, had breached their statutory duties to the buyers.

Jurors awarded the Regans $282,000 -- the purchase price they paid in 2007.

NeMoyer reduced the award to $217,000. In his decision, filed earlier this month, the judge wrote, in part:

"The Court finds merit to defendants' contention that the amount of damages awarded by the jury is excessive in relation to the proof in this case. As noted by defendants, in awarding plaintiffs the full purchase price of the home, the jury necessarily found that the property had zero market value upon plaintiffs' purchase of it, taking into account its considerable foundation problems."

"However, as further asserted by defendants, the proof does not support any such finding implying a $0 value," the judge wrote.

NeMoyer's $65,000 reduction was based on expert testimony that a builder-ready lot in that neighborhood would sell for $80,000, and that it would cost $15,000 for demolition and related costs.

On the finding of fraud by the sellers, NeMoyer wrote, in part:

"There is ample evidence in the trial record to support the finding that the Altmans affirmatively misrepresented the facts in their property disclosure form, in which they asserted that there were no known problems with the foundation."

Jurors had found the Altmans 75 percent at fault; Hunt Real Estate/John Fox, 20 percent; and the Regans, 5 percent. The Regans ignored their real estate agent's advice to seek a home inspection of the property while it was under contract.

In a post-trial motion, the Regans' attorney contended that comparative fault is no defense to the Altmans' liability. NeMoyer held the Altmans primarily liable for all damages ultimately awarded to the Regans.

In a judgment entered earlier this month, NeMoyer ordered the Altmans to pay an additional $10,850 -- representing the Regans' share of the reduced award.

Appeals are possible by the Altmans and Hunt/ Fox.

"In the long run, I'm confident we will be successful," said Myers.

email:jhabuda@buffnews.com

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