Katims v Daimler Chrysler Corp.

[*1] Katims v Daimler Chrysler Corp. 2006 NY Slip Op 52066(U) [13 Misc 3d 1230(A)] Decided on October 26, 2006 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2006
Supreme Court, Suffolk County

Sanford Katims, Plaintiff,

against

Daimler Chrysler Corporation and Huntington Jeep Chrysler, Inc., Defendants.



11279-2006



Attorney for Plaintiff

SANFORD KATIMS, PRO SE

76 MAIN STREET

PORT WASHINGTON, NEW YORK 11050

Attorney for Defendant

G. CHRISTOPHER GLEASON, ESQ.

THE ROSE LAW FIRM, PLLC

501 NEW KARNER ROAD

ALBANY, NEW YORK 12205

STEPHEN KUNKEN, ESQ.

6165 JERICHO TURNPIKE

COMMACK, NEW YORK 11725

Emily Pines, J.

ORDERED, that the motions (motion sequence numbers 003 and 004) by Defendants DAIMLER CHRYSLER CORPORATION ("DAIMLER") and HUNTINGTON JEEP CHRYSLER ("HUNTINGTON JEEP") to dismiss the Amended Complaint are granted and the action is dismissed against both Defendants.

Plaintiff commenced this action on or about May 30, 2006, for fraudulent misrepresentation and punitive damages against Defendants arising essentially out of a breach of warranty for a certain 2002 Jeep automobile. The automobile was manufactured by Defendant DAIMLER and sold by Defendant HUNTINGTON JEEP to the Plaintiff on or about April 29, 2002. Upon service of the complaint, Defendants both moved to dismiss on the ground that the complaint failed to state a cause of action. In lieu of submitting opposition to the motion, on or about July 3, 2006, Plaintiff served an Amended Complaint. Defendants have again moved to dismiss pursuant to CPLR §3211(a)(7).

The gravamen of the action is that when Plaintiff purchased the 2002 Jeep, he received from Daimler a 3-year, 36,000 mile limited warranty and a 7-year 100,000 mile extended power train warranty. On or about October 26, 2004, Plaintiff experienced transmission problems with the vehicle and attempted to determine whether any repairs would be covered by either warranty. The submissions reflect that Plaintiff contacted both Defendants on that date and were advised that his warranty had expired, causing him to have the vehicle ultimately repaired at a non-authorized repair station. Apparently, two days later, it was determined that the vehicle's transmission was still covered under the extended power train warranty. Although Plaintiff requested reimbursement for the repairs from DAIMLER, they refused on the basis that the vehicle was not repaired by an authorized facility as required by the terms of the warranty. As a result of the vehicle being repaired by an unauthorized facility, DAIMLER also voided the warranty for the remaining outstanding period.

Litigation ensued in the Third District Court and after trial, the Court (HACKELING, J.) dismissed the complaint against HUNTINGTON JEEP and found DAIMLER in default for failing to appear. The default was ultimately vacated by [*2]the Court upon motion as the Court had not obtained jurisdiction over DAIMLER.

The complaint in the instant action sets forth two (2) causes of action - fraudulent misrepresentation and punitive damages arising from fraudulent misrepresentation. Defendants both move to dismiss on the ground that the complaint fails to state a cause of action. Essentially, both Defendants argue that this is actually an action sounding in breach of contract (warranty) and thus Plaintiff's remedy is limited to a breach of contract action. Second, Defendants argue that Plaintiff cannot assert a claim for punitive damages in this action.

In opposition, Plaintiff has submitted an unsworn "Affirmation", in purported violation of CPLR §2106, which should theoretically be rejected out of hand by the Court. However, in the interest of judicial economy and the fact that Plaintiff is pro-se, the Court will consider his opposition. In said opposition, Plaintiff argues that he has set forth a separate and distinct claim for fraud and breach of the implied warranty of fair dealing, entitling him to proceed on a tort theory and that Defendant DAIMLER's misrepresentation intentionally caused him to breach the warranty.

The law is established that a breach of contract is "not to be considered a tort, unless a legal duty independent of the contract itself has been violated." Probst v. Cacoulidis, 295 AD2d 331, 743 NYS2d 509 (2d Dept. 2002). See also, Sergeants Benevolent Assoc., v. Renck, 19 AD3d 107, 796 NYS2d 77 (2d Dept. 2005). Moreover to prevail on a cause of action for fraudulent misrepresentation, Plaintiff must demonstrate that Defendants made a knowing misrepresentation of fact for the purpose of inducing Plaintiff to act or refrain from acting in reliance thereon and that plaintiff was damaged by such reliance. Burke v. Owen, 168 AD2d 722, 563 NYS2d 869 (3d Dept. 1990).

Further, it is well settled law that damages arising from a breach of contract will "ordinarily be limited to the contract damages necessary to redress the private wrong, but that punitive damages may be recoverable if necessary to vindicate a public right." Rocanova v. Equitable Life [*3]Asssurance Society of the United States, 83 NY2d 603, 634 NE2d 940, 612 NYS2d 339 (1994). In Rocanova, and again a year later in New York University v. Continental Insurance Company, 87 NY2d 308, 662 NE2d 763, 639 NYS2d 283 (1995), the Court of Appeals set forth the four required pleading elements to state a claim for punitive damages as an additional remedy when the claim arises from a breach of contract. Those elements, as articulated by the Court of Appeals are: "(1) Defendant's conduct must be actionable as an independent tort; (2)the tortious conduct must be of the egregious nature set forth in Walker v. Sheldon, 10 NY2d 401, 404-405, 223 NYS2d 488, 179 NE2d 497, supra [FN1]; (3) the egregious conduct must be directed to plaintiff; and (4) it must be part of a pattern directed at the public generally. New York University, supra . If the lawsuit is based upon a contractual relationship between the parties, the Court must first consider whether there exists a tort independent of the contract. Id. Stated differently, punitive damages are warranted where the conduct of the party being held liable "evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness." Thone v. Crown Equipment Corp., 27 AD3d 723, 810 NYS2d 925 (2d Dept. 2006). Mere speculation and intimation is insufficient to make such a showing.

Application of the above principles to the case at bar demonstrates why Plaintiff's Amended Complaint must be dismissed. Even assuming arguendo that the allegations of the Complaint are true, as required in a CPLR §3211(a)(7) motion, Plaintiff has not demonstrated that the actions of Defendants constituted a independent tort, separate from the breach of warranty/contract. The Complaint fails to state a cause of action for fraudulent misrepresentation; the unsworn allegations of the complaint rise only to the level of speculation regarding defendants' initial actions in providing erroneous information regarding the warranty.

Based upon the foregoing, Defendants' motions to [*4]dismiss the Amended Complaint for failure to state a cause of action are granted and the action is dismissed.

The foregoing constitutes the Decision and Order of the Court.







Dated: October 26, 2006

Riverhead, New York

________________________________

HON. EMILY PINES

J.S.C.







Footnotes

Footnote 1:In Walker, the Court of Appeals held that punitive damages may be allowed where the wrong complained of is "morally culpable, or is actuated by evil and reprehensible motives". In the case of fraud, there may be a recovery of punitive damages where the fraud, aimed at the public generally, is gross and involves high moral culpability.