Smith v Nikolayevskiy

[*1] Smith v Nikolayevskiy 2009 NY Slip Op 51069(U) [23 Misc 3d 1133(A)] Decided on May 12, 2009 Civil Court Of The City Of New York, Kings County Dear, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 21, 2009; it will not be published in the printed Official Reports.

Decided on May 12, 2009
Civil Court of the City of New York, Kings County

Ernest A. Smith, Plaintiff,

against

Yuriy Nikolayevskiy and INTERBORO AUTO MALL INC., Defendants.



CV-070237-08/KI



Appearances:

Ernest A. Smith

Plaintiff pro se

Bruce Provda, Esq.

Attorney for Defendant

Noach Dear, J.

Plaintiff commenced this action seeking damages for breach of implied warranties arising out of his purchase of a of a used 2004 Dodge Durango from defendant Interboro Auto Mall Inc.

A bench trial took place before the undersigned on February 5 and 9, 2009. After considering and weighing the trial evidence and having the opportunity to assess the credibility and demeanor of the witnesses, the Court makes the following findings of fact and conclusions of law:

On February 5, 2008, plaintiff Ernest A. Smith purchased a used 2004 Dodge Durango ("car") from defendant Interboro Auto Mall Inc. ("Interboro") for $15,000.00. On February 8, 2008, when plaintiff picked up the car, the car was already in need of servicing, as engine fluids were completely missing. A few days later, when additional problems manifested themselves and when the car's check engine light lit up, plaintiff brought the car to Magic Touch Service Station. On February 19 and 23, 2008, David Gershwin, a mechanic from Magic Touch Service Station inspected the car and found that the brakes, seatbelts, and rotors needed repair. Mr. Gershwin deemed the car unsafe to drive.

On February 29, 2008, the plaintiff brought the car back to Interboro, and gave it the opportunity to fix the problems found by Mr. Gershwin. Interboro's mechanic fixed only some of the problems. Thereafter, plaintiff brought the car back to Mr. Gershwin who testified that whoever looked at and serviced the car at Interboro should have his license suspended, as the car was returned to plaintiff even though it needed several major repairs. Plaintiff took the car back to Mr. Gershwin on March 3 and 10, 2008 for more work. A few weeks later, even though the car was repaired on several occasions, the car would not start. Finally, on April 4, 2008, the [*2]plaintiff brought the car to Brooklyn Dodge, where its mechanics found that the engine needed to be replaced for a total cost of $7,146.59.

Notably, plaintiff apprised Interboro of each development with the car, and defendant expressed no interest in repairing what need to be repaired or helping the plaintiff in any way. They made it extremely clear that plaintiff's attempts to repair or resolve car's matters with the defendant would be futile. Unable to afford the cost of having the engine replaced, plaintiff sold the car for $7,146.59.

After careful consideration of the trial evidence, the court finds that defendant Interboro breached both the implied warranty of merchantability (UCC § 2-314 [1]) and the implied warranty of serviceability imposed by Vehicle and Traffic Law §417 .

Pursuant to UCC § 2-314, if a seller is a merchant with respect to goods sold, as here, a warranty that the goods are merchantable is implied in the contract for their sale. For "[g]oods to be merchantable [they] must be at least such as . . .[to] pass without objection in the trade under the contract description; and . . . [be] fit for the ordinary purposes for which such goods are used" (UCC § 2-314 [2]).[FN1] Vehicle and Traffic Law § 417, in effect, codifies the "warranty of merchantability" with respect to the sale of second hand motor vehicles (Armstrong v. Boyce, 135 Misc 2d 148 [Watertown City Ct 1987]; Hurley v. Suzuki, 22 Misc 3d 1113[A], 2008 NY Slip Op. 52633[U] [Nassau Dist Ct]) and provides that if a seller is a retailer dealer of second hand motor vehicles, as here, a warranty of serviceability is implied in every contract for sale of a second hand motor vehicle.

The warranty of serviceability requires that a second hand motor vehicles be " in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery" (Vehicle and Traffic Law § 417). This means that the vehicle, at the time of sale, be properly equipped and free from material defects (see Rayhn v. Martin Nemer Volkswagen Corp., 77 A.D.2d 394, 396 [3d Dept 1980]; see also Pinelli v. De Paula Chevrolet, Inc., 101 AD2d 643, 644 [3d Dept 1984] [citations omitted]; see also Dato v. Vatland, 36 Misc 2d 636 [Nassau Dist Ct 1962]). Unlike the warranty of merchantability, the warranty of serviceability cannot be disclaimed or waived (see e.g. Rayhn v. Martin Nemer Volkswagen Corp., 77 AD2d at 396). "A prima facie showing of a defect raises a presumption that it existed at the time of delivery" (Williams v. Planet Motor Car, Inc., 190 Misc 2d 22, 32 [Civ Ct, Kings County 2001] [citations omitted]; see also Hurley v. Suzuki 112 USA, LLC, 22 Misc 3d 1113[A], 2008 NY Slip Op. 52633[U]).[FN2] [*3]

Here, the credible evidence demonstrated that the car was not of merchantable quality and was not "in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery" (Vehicle and Traffic Law § 417).

Having determined that defendant Interboro breached the implied warranties of merchantability and serviceability, the Court looks to UCC §§ 2-706, 2-714 and 2-715 to measure damages. Generally, aggrieved buyers receive the cost of repairs measure of damages, which is the usual difference between the price of the car as delivered and the price of the car as promised (see UCC § 2-714 [2]; see also Malul v. Capital Cabinets, Inc., 191 Misc 2d 399, 408 [Civ Ct, Kings County 2002] [citations and quotations omitted]). Under the circumstances of this case, however, this remedy would be grossly inadequate since it would not put plaintiff in as good a position as if the defendant had fully performed and would, in effect, reward the defendant for frustrating every single one of plaintiff's attempts to resolve the car's problems (see Super Glue Corp. v. Avis Rent A Car System, Inc., 132 AD2d 604, 605 [2d Dept 1987]).[FN3] The court notes that the "[t]he remedies provided by [the UCC] shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed" (UCC § 1-106 [1]), and they are essentially cumulative (see Fonseca and Fonseca, The Law of Modern Commercial Practices, Vol. 1. Sec. 3:145 [2d Revised Ed. 2001] [UCC rejects election of remedies doctrine]; see also 67A Am. Jur. 2d Sales § 1035; see also UCC § 2-719, Official Comment 2). Further, the buyer's remedies set forth in the UCC are not exhaustive, and the buyer may recover in any reasonable manner (see Fonseca and Fonseca, The Law of Modern Commercial Practices, Vol. 1. Sec. 3:145 [2d Revised Ed. 2001]; see also McCormack v. Lynn Imports, Inc., 114 Misc 2d 905, 909-910 [Nassau Dist Ct 1982]; see also CPLR 3002 [e]).

Applying these principles, the court finds that plaintiff is entitled to the difference in value of the car as warranted, i.e. - the contract price of $15,000.00 (see Malul v. Capital Cabinets, Inc., 191 Misc 2d at 409 [citations omitted]) and the value of the car as delivered, which the Court concludes is $0.00. In this regard, the admissible and credible evidence presented at trial showed that the car was worthless (see e.g. Peak v. Northway Travel Trailers Inc., 260 AD2d 840 [3d Dept 1999]). Plaintiff is also entitled to recover for the cost of repairs prior to sale, i.e. $8,166.75. These amounts must be reduced by the resale price of the car- $7146.59- to avoid a windfall (UCC § 2-714; see also UCC § 2-706; Anderson, 1 Damages Under the Uniform Commercial Code § 7:2 [2008]). While plaintiff demonstrated entitlement to damages in the amount of $17,063, plaintiff demanded only $15,612.34 in his complaint.

Finally, no credible evidence was introduced demonstrating a basis to find defendant [*4]Yuriy Nikolayevskiy liable to the plaintiff in his individual capacity.

Based on the foregoing, it is hereby

ORDERED that judgment be entered in favor of plaintiff Ernest A. Smith against defendant Interboro Auto Mall Inc. in the amount of $15,612.34 together with costs, disbursements and interest from April 4, 2008 and dismissing the complaint as against defendant Yuriy Nikolayevskiy

This constitutes the decision and order of the court.

Dated: May 12, 2009

Brooklyn, New York

_______________________________

Hon. NOACH DEAR, J.C.C. Footnotes

Footnote 1: As applied to automobiles, the UCC warranty of merchantability means that at the minimum the car "must enable the purchaser to transport herself upon the streets and highways of this State or any other in a reasonably safe manner" (see Raymond v. Van Deusen, 183 Misc 2d 81, 84 [Just Ct 1998] [citations and quotations omitted]).

Footnote 2: Here, defendant's contract of sale, in addition to the above warranties, expressly stated that the car complied with Vehicle and Traffic Law § 301 (VTL), which requires vehicles to be inspected for safety and bear a valid certificate of inspection prior to delivery. This burden rests solely upon the dealer (Natale v. Martin Volkswagen, Inc., 92 Misc 2d 1046, 1049 [Utica City Ct 1978]). Here, the testimony at trial established that the inspection and certificate thereof were not in compliance with VTL § 301. Rather, the opposite was true, as Gershwin testified that whoever issued the inspection certification should be suspended. Even without Gershwin's testimony, the record reveals that the inspection certificate was in violation of VTL § 301 [c][1][A] because the seatbelts and the brakes did not function properly when the car was sold (see VTL § 306 [d]; see also 15 NYCRR 41.1 et seq.).

Footnote 3: "When a party acts in bad faith, he will ordinarily be denied the benefit of any provision or concept that would improve his position" (Super Glue Corp. v. Avis Rent A Car System, Inc., 132 AD2d 604, 605 [2d Dept. 1987] [citations omitted]).