Opinion
No. 2011–3237 ROC.
2013-05-13
Bruce EWEN, Appellant, v. CONGERS AUTO SALES, INC. Doing Business as Rockland Motors, Respondent.
Present NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Rolf M. Thorsen, J.), entered August 5, 2011. The judgment, after a nonjury trial, dismissed the action.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Justice Court for a new trial in accordance with the decision herein.
In this small claims action, plaintiff seeks to recover the principal sum of $2,708.99 for repairs allegedly required to be made to the used car that he bought from defendant. The evidence at a nonjury trial of the action showed that in December 2009, plaintiff had purchased from defendant a 2000 Honda Accord coupe with an odometer reading of 118,824 miles, for a total cost of $5,310.75. Plaintiff testified that he had test driven the car before he purchased it, and was only induced to make the purchase by defendant's promise, which was memorialized in the purchase agreement, that the purchase was “subject to” defendant's repair of the “SRS” and of condensation in the headlight, defendant's addressing the car's “radio code, strut, [cruise] control, vibration in tires, and flex pipe,” and defendant's removal of the wheel locks. Plaintiff claimed that, despite his repeated complaints, defendant had failed to repair a number of these items. Additionally, he asserted that defendant had removed the catalytic converter heat shield, that the “check engine light” had gone on some time after plaintiff had taken possession of the car, and that the car's bumpers had been improperly painted. Plaintiff submitted two estimates for the repair or replacement of each of those items. The Justice Court dismissed the action upon a finding that, to prove his case, plaintiff was required to support his claims with expert testimony.
As to those items which defendant had specifically promised to repair in the purchase agreement, plaintiff established, prima facie, by his submission of two itemized estimates, the reasonable value and necessity of such repairs ( seeUJCA 1804; see also Torres v. Cosmopolitan Assoc., LLC, 27 Misc.3d 134[A], 2010 N.Y. Slip Op 50717[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ), and it was error to dismiss the action on the basis of plaintiff's failure to produce an expert witness with respect thereto.
The Used Car Lemon Law does not apply to cars, such as the car plaintiff purchased from defendant, which have over 100,000 miles on their odometers ( seeGeneral Business Law § 198–b [d][3]; [f][3][c] ). Used cars nevertheless constitute “goods” within the meaning of the Uniform Commercial Code (UCC 2–105) and, where sold by a “merchant” ( seeUCC 2–104[1] ), are covered by the implied warranty of merchantability that, unless specifically excluded or modified as permitted under UCC 2–316, they are fit for the ordinary purposes for which they are intended to be used (UCC 2–314[2][c]; see also e.g. Nutting v. Ford Motor Co., 180 A.D.2d 122, 129 [1992] ). However, with respect to those items plaintiff complained of which defendant, a merchant, had not explicitly promised to repair on the purchase agreement, we find that plaintiff failed to adequately prove that they rendered the car unfit for the ordinary purposes for which it was intended to be used ( seeUCC 2–314[2][c] ) or otherwise constituted a breach of the implied warranty of merchantability ( seeUCC 2–314[2] ) at the time the car was delivered to plaintiff. The Justice Court, therefore, properly determined that plaintiff had failed to prove his right to recover for those items, and we conclude that plaintiff is not entitled to a new trial with respect to his claims for damages based on defendant's alleged removal and failure to repair or replace the catalytic converter shield, defendant's alleged failure to remediate plaintiff's problems related to the “check engine light,” and the allegedly defective paint on the car's bumpers.
We note that we do not consider those factual assertions made or exhibits submitted by plaintiff to this court which are dehors the record ( e.g. Terranova v. Waheed Brokerage, Inc., 78 AD3d 1040 [2010];Chimarios v. Duhl, 152 A.D.2d 508 [1989] ).
In view of the foregoing, we find that the judgment did not provide the parties with substantial justice according to the rules and principles of substantive law ( seeUJCA 1804, 1807). Accordingly, the judgment is reversed, and the action is remitted to the Justice Court for a new trial limited to the issue of plaintiff's right to recover for those items which defendant explicitly promised, but allegedly failed, to repair.