Wiafe v Chiapperino

[*1] Wiafe v Chiapperino 2014 NY Slip Op 51484(U) Decided on October 10, 2014 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570592/14

Francis Wiafe, Plaintiff-Appellant,

against

John Chiapperino and A & M Auto Wreckers, Inc., Defendants-Respondents.

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered November 18, 2013, after a nonjury trial, in favor of defendants dismissing the action.

Per Curiam.

Judgment (David B. Cohen J.), entered November 18, 2013, affirmed, with $25 costs, for the reasons stated by David B. Cohen, J. at Civil Court.

There is ample record support for the trial court's factual finding that plaintiff purchased the used automobile engines here at issue on an "as is" basis, thus precluding plaintiff's recovery for breach of warranty (see UCC 2-316[1], [3][a]; Pioneer Ins. Co. v Griffith Oil Co., 267 AD2d 945, 945-946 [1999]). Nor does plaintiff fare better even were we to deem his action as sounding in fraud, in view of the trial court's fully supported findings that plaintiff was personally "involved in the selection of a substantial number of the engines," was present when at least some of the engines were loaded into defendant's shipping container, and had access to and took photographs of "the fully loaded container prior to it being trucked away." New matter submitted by plaintiff-appellant dehors the record is not properly considered on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: October 10, 2014