Burns v Botnick Motor Corp.

[*1] Burns v Botnick Motor Corp. 2005 NY Slip Op 50227(U) Decided on January 3, 2005 Supreme Court, Broome County Rumsey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 3, 2005
Supreme Court, Broome County

Floyd E. Burns, Plaintiff,

against

Botnick Motor Corp., Defendant.



2003-2080



Hinman, Howard & Kattell, LLP

By:Thomas W. Cusimano, Jr., Esq.

Attorneys for Defendant

700 Security Mutual Building

80 Exchange Street

P.O. Box 5250

Binghamton, New York 13902-5250

Vitanza, Distefano & Dean, LLP

By:Thomas A. Vitzanza, Esq.

Attorneys for Plaintiff

15 Maple Street

Norwich, New York 13815

Phillip R. Rumsey, J.

This action arises from plaintiff's purchase of a used, 1994 Plymouth Duster automobile from defendant in 1998. Though 44 years old at the time, plaintiff, who avers that he is "basically illiterate," had never before purchased an automobile (Affidavit of Floyd E. Burns, dated September 3, 2004, ¶ 7). In support of his claims of fraud and deceptive business practices, plaintiff alleges that defendant's employees made several misrepresentations that induced him to purchase the car, and provided a bank with erroneous information about his income and expenses to obtain financing for the purchase. Plaintiff evidently ceased making the required payments, and the car was ultimately repossessed and sold, resulting in a deficiency judgment against plaintiff in the amount of $7,309. Defendant now moves for summary judgment dismissing the complaint.

In support of the motion, defendant submits an affidavit of counsel, attempting to point out deficiencies in plaintiff's complaint, and an affidavit of defendant's current finance director, C. J. O'Brien, who marshalls the evidentiary facts that may be gleaned from the dealership's records. O'Brien does not claim to have any personal knowledge of what transpired when the sale was consummated in 1998 (see, Affidavit of C.J. O'Brien, dated August 12, 2004).

Defendant has submitted no testimony or other probative evidence that would, if credited, disprove plaintiff's factual allegations. In essence, defendant asserts two grounds for dismissal: that the allegations of the complaint, even if accepted as true, do not state a cause of action for fraud; and/or that the undisputed facts, including the contents of the relevant documents, negate any possible finding of reliance or damages. Neither of these contentions is persuasive.

Significantly, among the misrepresentations that plaintiff alleges were made to him by Joe Connelly, defendant's Finance Manager (and upon which plaintiff relied in purchasing the car), is the statement that Connelly would "report all [plaintiff's financial] information accurately to a bank in order to obtain financing for plaintiff" (Complaint, ¶¶ 10, 16 [b]). Plaintiff also alleges that Connelly did not, in fact, report such information as it was given to him by plaintiff (in reliance on Connelly's representation), but rather - in several specific ways, detailed in the complaint - knowingly misstated plaintiff's income and expenses, to present a better financial picture to the bank (id., ¶ 17). Plaintiff also alleges that he was told by one of defendant's employees, who knew of his inability to read or write, that "it was necessary for [him] to sign a blank credit application * * * 'because the bank required it'" (Complaint, ¶ 16 [g]).

Read as a whole, the complaint adequately sets forth all the elements of a fraud claim, namely, that defendant (through its employees) made material misrepresentations to plaintiff (including the statements detailed above), knowing that they were false, with the intention that plaintiff rely upon them (knowing of plaintiff's disabilities, Connelly would have known that plaintiff had no choice but to rely upon his assertions as to what would be placed on the credit application); that plaintiff did so rely; and that he was damaged as a result. The purported misrepresentations were not, as defendant contends on this motion, all made to the bank.

Moreover, any deficiencies in the complaint are remedied by the factual affidavits tendered by plaintiff in opposition to the motion (see, Leon v Martinez, 84 NY2d 83, 88 [1994]). [*2]In addition to his own affidavit and that of his mother (who was also present when the purchase was made), plaintiff also proffers an affidavit from a former employee of the bank that furnished credit to plaintiff. That individual avers, after reviewing the relevant facts relating to plaintiff's financial status, that had the bank been furnished with accurate information about plaintiff's income and expenses - the information plaintiff avers he provided to Connelly, with the understanding that it would be transmitted to the bank - the application would not have been approved (Affidavit of William T. Slote, dated September 3, 2004, ¶¶ 3-5). This establishes a manifest link between the alleged fraud and the damages sustained by plaintiff as a result.[FN1]

Equally unconvincing, under these circumstances, are defendant's contentions that because plaintiff signed the purchase agreement and the credit application, he must be deemed to have known their contents, and cannot therefore claim to have relied on any oral representations to the contrary. While defendant's employees, if they knew of plaintiff's inability to read, may not have had any affirmative duty to assist him, they certainly had a duty to refrain from taking advantage of that circumstance to serve their own interests in making the sale, by engaging in "positive, willful wrong or fraud," to plaintiff's detriment (Wilcox v Amer. Tel. & Tel. Co., 176 NY 115, 117 quoting Albany City Savings Inst. v Burdick, 87 NY 40). Plaintiff's failure to read the application (or, if he could not, to have it read to him), does not absolve defendant of liability for fraudulently misrepresenting to plaintiff the contents of the document, or knowingly misrepresenting that it would be completed with the information he provided, and thereby inducing him to refrain from obtaining further assistance (see, Muller v Rosenblath, 157 App Div 513, 516-517 [1913]; cf., Angerosa v White Co., 248 App Div 425, 429, affd 275 NY 524 [1936] [plaintiffs' failure to read agreement, or have it read to them, not excused "where they were not induced to do so by any deceit or artifice on the part of the defendant, and where the contents of the instrument were not misrepresented to them" (emphasis added)]; see also, Pimpinello v Swift & Co., 253 NY 159, 163 [1930]; Adler v Brady, Cryan & Colleran, Inc., 238 App Div 793 [1933] [taking into account, inter alia, plaintiff's "ignorance, her vocation, the signing of the contract in blank," in determining that "she was easily misled by the assurances" of plaintiff's salesman]).

Defendant is, however, correct in noting that plaintiff's claims that defendant violated the prohibition against "deceptive business practices" (General Business Law § 349) are time-barred, having accrued, at the latest, when plaintiff's vehicle was repossessed in June 2000, more than three years before this action was commenced. Those claims must therefore be dismissed, and defendant's motion is granted to that extent, and otherwise denied.

This decision shall constitute the order of the court.

Dated: January 3, 2005

Cortland, New York [*3]

____________________________ HON. PHILLIP R. RUMSEY

Supreme Court Justice

ENTER

The following papers were filed with the Clerk of the County of Broome:

-Notice of Motion dated August 12, 2004; Affidavit in Support of Defendant's Motion for Summary Judgment of Thomas W. Cusimano, Jr. sworn to August 12, 2004; Affidavit of C.J. O'Brien sworn to August 12, 2004 with attached Exhibits 1-4;

-Affidavit of Service By Mailing of Lorraine D. Brady sworn to August 14, 2004;

-Affidavit of Floyd E. Burns sworn to September 1, 2004; Affidavit of Estella Burns sworn to September 1, 2004; Affidavit of William T. Slote sworn to September 3, 2004 with attached Exhibit A;

-Affidavit of Service of Ashley Sherman sworn to September 8, 2004;

-Response to Demand for Productions of Documents dated November 7, 2003;

-Bill of Particulars of plaintiff verified November 7, 2003;

-Original Decision and Order dated January 3, 2005. Footnotes

Footnote 1:The mere fact that plaintiff was able to make the payments for some period of time before defaulting would not necessarily preclude a finding that plaintiff was ultimately damaged by defendant's wrongdoing, if it is proven that the alleged fraud actually occurred, and caused plaintiff to take on a payment obligation that was beyond his means.