concurs in part and dissents in part and votes to reverse the order insofar as appealed from, grant each of the appellants’ motions for summary judgment, and dismiss the complaint in its entirety, with the following memorandum, with which H. Miller, J., concurs: I agree with the majority that the plaintiffs causes of action against the building inspectors should have been dismissed. However, I disagree with the majority’s conclusion that summary judgment was properly denied with respect to the plaintiffs first and second causes of action alleging that the Trosts and the real estate agents affirmatively *489misrepresented and actively concealed a seasonal summer bat colony in the attic of the subject premises.
The majority acknowledges that “New York adheres to the doctrine of caveat emptor and imposes no duty on the seller to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment” (Platzman v Morris, 283 AD2d 561, 562 [2001]). The majority finds that although the Trosts and the real estate agents established their entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact. It is my belief that the plaintiffs claims are refuted by the undisputed facts.
At his deposition, the plaintiff testified that he first viewed the subject premises in July 1993 in “full daylight” with two companions and the defendant Linda Piermarini, a licensed real estate broker associated with the defendant Robert A. McCaffrey Realty, Inc. The plaintiff stayed in the house for 45 minutes and spent a “long time” in the attic because he was concerned about a stain on the stucco on the outside of the house. The plaintiff “looked very carefully” at the “floor and windows and everything else” of the attic. He noted that there was “a very strong mothbally smell” and asked Linda Piermarini about it. According to the plaintiff, she replied that “the owners stored a lot of stuff up there.” The plaintiff smelled the odor of “[a]nimal excrement, urine” on the second floor and to some extent on the first floor. He claims that Linda Piermarini attributed the smell to the owners’ house pets and poor housekeeping.
Several weeks later the plaintiff saw the house a second time. On that occasion, the plaintiff had free access to all parts of the home including the attic. In the attic, he noted that additional wiring in the form of extension cords had been added since his last visit, but did not recall the presence of any additional lights. He recalled that the odor was “more intense” and there were “droppings” in the center of the floor in an area three-feet wide with “sweep marks” around the area of the droppings. The plaintiff claims that he asked Linda Piermarini what the droppings were and she said they were bird droppings. The plaintiff claimed that Piermarini also attributed the stain on the stucco on the outside of the house to bird droppings. The plaintiffs companion photographed the attic and the droppings. The plaintiffs claim of concealment is refuted by the fact that he was able to photograph evidence of the condition.
Thereafter, the plaintiff submitted a list of 23 written questions to the Trosts asking, inter alia, about leaks, repairs in the *490last 10 years, the condition of plaster underneath panelling, the condition of floors underneath carpeting, whether there had been a radon test recently, and whether there was any asbestos in the house. There was no reference to the attic or the droppings in the written questions. The Trosts submitted written answers to each of his questions on or about August 20, 1993.
The plaintiff made an offer to purchase the premises contingent upon an engineer’s inspection, “water, termite, septic & radon testing” and “inspection of roof.” Since the plaintiff was concerned that the floors under the carpeting had been damaged by urine, carpeting was removed at his request.
The plaintiff was present during the inspection, which took place on September 1, 1993, and took three hours. The plaintiff and the inspector had “unhampered access” to the attic and all other areas of the house. The plaintiff still noted the odor of mothballs in the attic but the droppings were gone and the smell of urine was gone. He claimed that he demanded “a satisfactory explanation” from Linda Piermarini for the bird droppings which were present earlier and she informed him several days later that the inspector said birds were getting in through a broken pipe which would be repaired at the Trosts’ expense.
Pursuant to the terms of the contract of sale, the plaintiff moved into the premises on October 28, 1993, in excess of two months prior to the closing. The plaintiff claimed he was told that he was “not supposed to store anything in the attic” prior to the closing but acknowledged that he had complete access to the attic during that period. He acknowledged that he went into the attic to confirm that the broken pipe had in fact been repaired.
Prior to the closing, around Thanksgiving in 1993, the plaintiff noticed that, despite the fact that the Trosts were no longer living there, the smell of urine had returned. The closing occurred in early January 1994.
In response to the prima facie showing by the Trosts and the real estate agents of their entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue with respect to fraudulent concealment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Prior to making an offer to purchase the property, the plaintiff had the opportunity to see, smell, and photograph a three-foot-wide pile of droppings. Thereafter, the plaintiff submitted written questions to the Trosts which did not refer to the attic or the droppings. Carpeting was removed at his request so he could examine the condition of the floors underneath. The plaintiff hired an inspector who inspected the property in his *491presence. He took possession of the property in excess of two months prior to the closing and full access to the attic and the rest of the house.
One of the elements of a cause of action sounding in fraudulent misrepresentation is justifiable reliance by the plaintiff on the misrepresentation or material omission (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; Shao v 39 Coll. Point Corp., 309 AD2d 850, 851 [2003]). In light of the plaintiffs multiple opportunities to investigate the attic prior to the closing, both before and after assuming possession, the plaintiffs claim of justifiable reliance is unsupportable. The plaintiff had ample opportunity to ascertain the condition of the attic through the exercise of due diligence (see Glazer v LoPreste, 278 AD2d 198, 199 [2000]). Although the plaintiff freely exercised his right to inquire by submitting 23 written questions to the sellers he did not inquire about the droppings in the attic. Nor did he request an inspection addressed to the evidence of a pest infestation.
The plaintiffs own observations and his photographs thereof refuted his contentions of justifiable reliance as a matter of law (see Berger-Vespa v Rondack Bldg. Inspectors, 293 AD2d 838, 840 [2002]).
In view of the foregoing, I would dismiss the action in its entirety.