Massaquoi v Arias

[*1] Massaquoi v Arias 2014 NY Slip Op 50480(U) Decided on March 17, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-2092 RI C.

Irene Massaquoi, Respondent,

against

Peter A. Arias, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered September 5, 2012. The judgment, entered pursuant to a decision of the same court dated February 28, 2012, after a nonjury trial, awarded plaintiff the principal sum of $4,814.37.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated February 28, 2012 is deemed a premature notice of appeal from the judgment entered September 5, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

On October 17, 2011, plaintiff purchased from defendant a used 2005 Nissan Pathfinder. On December 13, 2011, she received title to the vehicle and, shortly thereafter, had the vehicle repaired due to alleged defects in the vehicle. She commenced this action to recover the amounts she had spent on the repairs.

At a nonjury trial, plaintiff and her witness testified that defendant had told them that there were no problems with the vehicle. Plaintiff offered into evidence several paid bills for, among other things, replacement of the four tires and the radiator, and a rebuilt transmission. Defendant testified that the vehicle was in perfect condition at the time of sale and that he had told plaintiff that the purchase was "as is." Following the trial, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $4,814.37.

Upon our review of the record, we find that plaintiff did not meet her burden of establishing a basis for liability on the part of defendant, whether under the Uniform Commercial Code, general contract principles, or any other theory. As defendant is not a "merchant" (UCC 2-104 [1]) of motor vehicles, no implied warranty of merchantability arose with the sale (see UCC 2-314). Moreover, no liability can be imposed upon defendant based on a breach of an express warranty (see UCC 2-313) since plaintiff failed to establish any express warranty created by defendant, as defendant's representation that the vehicle had "no problems" amounted to no more than sales talk or "puffery" (see Scaringe v Holstein, 103 AD2d 880, 881 [1984]). Similarly, there was no breach of an implied warranty of fitness for a particular purpose (see UCC 2-315) in the absence of a showing of a "particular purpose" for which the vehicle was required. Even assuming that plaintiff is alleging a breach of contract and is seeking damages for "non-conformity of tender" (see UCC 2-714), she did not show that the vehicle was not in conformity with the contract.

In view of the foregoing, we need not reach defendant's remaining contention.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014