Guarino v Land Rover N. Am., Inc.

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Guarino v Land Rover N. Am., Inc. 2011 NY Slip Op 33372(U) December 12, 2011 Supreme Court, Nassau County Docket Number: 13417/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIAL/IAS P ART 32 NASSAU COUNTY JOSEPH GUARIO Plaintiff - against - Index No. : 1341"7/10 Motion Seq. No. : 01 07/14/11 Motion Date: LAND ROVER NORTH AMERICA , INC. JAGUAR LAND ROVER NORTH AMERICA , LLC and AUTOMOBILE PROTECTION CORPORATION Defendants. The following papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Memorandum of Law Affirmation in Opposition and Exhibits Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant Jaguar Land Rover North America, LLC (" Jaguar ) moves , pursuant to CPLR S 3212 , for an order granting it sumary judgment. Plaintiff opposes the motion. No papers were . submitted by defendant Land Rover North America Inc. , nor defendant Automobile Protection Corporation. The instant action involves a breach of waranty claim. Plaintiff commenced the action by filing a Summons and Verified Complaint on or about July 14 2010. Issue was joined by defendant Jaguar on or about August 17 2010. [* 2] In its motion for sumar judgment , defendant Jaguar asserts that plaintiff leased a 2005 Range Rover in or about July 2007. Said vehicle was originally sold on November 30 , 2004 , with a standard factory waranty of four years or 50 000 miles. Defendant Jaguar submits that the standard factory warranty would have expired no later than November 29 , 2008. Defendant Jaguar states that plaintiff, in his Verified Complaint , claims that he developed engine concerns on December 23 2009 , and that he had purchased an extended warranty through defendant Automobile Protection Corporation. Defendant Jaguar now moves for summar judgment on the basis that there are no facts to support a breach of waranty claim against it since no complaints were made within the waranty period and the engine concerns plaintiff alleges occured thirteen (13) months after the factory warranty expired. Defendant Jaguar argues that an express warranty does not cover repairs made after the applicable waranty period has elapsed. In opposition to defendant Jaguar s motion , plaintiff submits that , in July 2007 , upon leasing the 2005 Range Rover , he "purchased a Limited Waranty through the defendants providing him with coverage for seventy two (72) additional months or seventy five thousand (75 000) miles. See Plaintiffs Affirmation in Opposition Exhibit A. Plaintiff contends that , on or about December 2009 , the subject vehicle developed engine trouble. After inspection of the vehicle , defendant Jaguar refused to cover the cost ofthe repairs to the vehicle pursuant to the Limited Waranty. Plaintiff argues that defendant Jaguar s motion for summar judgment should be denied in its entirety on the grounds that there are issues of fact which preclude summarily deciding this matter and that defendant Jaguar has failed to make a prima facie showing of its entitlement to judgment as a matter of law. Plaintiff submits that (iJn its affirmation , the attorney for defendant alleges that the [* 3] defendant did not issue the limited waranty. Conversely, the limited waranty may very well have been issued by defendant Jaguar Land Rover North America, LLC since the waranty is on the Land Rover letterhead and was delivered to plaintiff at the dealership when he leased the vehicle. Although the engine problems at issue may not have occurred during the basic factory waranty period , it (sic) has absolutely occurred during the limited waranty period. Furher defendant Jaguar Land Rover North America , LLC is the sellng dealer who leased this vehicle to the plaintiff at the time that the limited warranty was issued. Defendant Jaguar Land Rover Nort America, LLC has been in possession of the vehicle since December 2009 , when the plaintiff returned the vehicle to them to make repairs because it was no longer drivable. Defendant Jaguar Land Rover North America, LLC is now seeking damages from the plaintiff to cover the repairs. In view of the fact that defendant Jaguar Land Rover North America, LLC is seeking that the plaintiff monetarily contribute to the repairs which should have been covered, the defendant must remain in the action until the legal positions of all paries are established. Plaintiff furer notes that defendant Jaguar fails to provide a copy of the basic factory waranty, which is referenced on numerous occasions in its motion , and fails to include an affidavit on behalf of defendant Jaguar , but instead make baseless assertions. Plaintiff argues that (iJn this case , it is obvious that the defendant is not entitled to summary judgment relief. A review of the evidence in this matter indicates that a waranty existed at the time of the engine trouble that should have covered any and all of the repairs to the vehicle. The vehicle was purchased from the defendant and the defendant is now seeking payment from the plaintiff for the repairs which should have been covered under the limited warranty. Furher , even ifthe defendant is not the par that issued the limited waranty, it has [* 4] not provided any evidence to support its contention that it is not responsible under the basic factory waranty. They have failed to include a copy of that waranty or an affidavit substantiating the attorney s claims. Plaintiff adds that the instant motion is prematue as the paries have not yet exchanged any discovery, nor have the paries conducted depositions. In fact , plaintiff has not yet received an Answer from defendants Land Rover North America, Inc. or Automobile Protection Corporation. It is well settled that the proponent of a motion for summary judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient prima facie See Silman v. Twentieth Century- evidence to demonstrate the absence of material issues of fact. Fox Film Corp. Y.2d 320 Alvarez v. Prospect Hospital, 68 3 N. Y.2d 395 , 165 N. Y.S.2d 498 (1957); 508 N. Y.S.2d 923 (1986); Bhatti v. Roche 140 A. D.2d S.2d 595 (1980); 49 N. Y.2d 557 , 427 Zuckerman v. City of New York, 660 528 N. 2d 1020 (2d Dept. 1988). To obtain summar judgment , the moving pary must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form , sufficient to warrant the cour , as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N. Y.2d 1065 416 N. Y.S.2d 790 (1979). Such evidence transcripts , as well as other proof annexed to an attorney s affirmation. may include deposition See CPLR S 3212 (b); Olan v. Farrell Lines Inc. 64 N. Y.2d 1092 489 N. Y.S.2d 884 (1985). If a sufficient prima facie showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summar judgment and necessitates a trial. See Zuckerman v. City of New York 49 N. Y.2d 557 , 427 [* 5] Y.S.2d 595 (1980), supra. When considering a motion for sumar judgment , the fuction of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Silman v. Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S. 2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 , 525 N. Y.S.2d 793 (1988). Furher , to grant summar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N. Y.2d 247 428 N. Y.S.2d 665 (1980); Johnson 147 A.D. 2d 312 , 543 N. Y.S. 2d Daliendo v. 987 (2d Dept. 1989). Based upon the legal argument and the lack of evidence provided by defendant Jaguar in its motion , the Court finds that defendant Jaguar has failed to make aprimafacie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. As noted by plaintiff, defendant Jaguar provided no documentar evidence whatsoever. Additionally, the Cour notes that defendant Jaguar failed to submit a copy of the pleadings as an exhibit to the motion as required pursuant to CPLR S 3212 which states that " (aJ motion for summar judgment shall be supported by... a copy of the pleadings... " Based upon the papers before it , the Cour finds that there are indeed issues of fact which would preclude sumar judgment. Accordingly, defendant Jaguar s motion , pursuant to CPLR S 3212 , for an order granting it sumary judgment is hereby DENIED. It is further ordered that the paries shall appear for a Preliminar 2012 , at 9:30 a. Conference on Januar , at the Preliminar Conference Desk in the lower level of 100 Supreme [* 6] Cour Drive , Mineola , New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There will be no adjourents except by formal application pursuant to 22 NYCRR S 125. This constitutes the Decision and Order of this Cour. DENISE L. SHER, A. Dated: Mineola, New York December 12 , 2011 ENTERED DEC 14 2011 NASSAU COUNTY COUNTY CLERK' S OFFtCE

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