Martinez v Planet Automotive, Inc.

[*1] Martinez v Planet Automotive, Inc. 2015 NY Slip Op 51127(U) Decided on July 27, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-1824 Q C

Dennis Martinez, Appellant,

against

Planet Automotive, Inc. Doing Business as KG SUZUKI, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered February 11, 2013. The order, insofar as appealed from as limited by the brief, denied the branches of plaintiff's motion seeking summary judgment on his causes of action for conversion, prima facie tort, fraud, and based on a violation of General Business Law § 349.

ORDERED that the order, insofar as appealed from, is affirmed, without costs. Plaintiff commenced this action in Supreme Court, Queens County. In the complaint, plaintiff alleged, insofar as is relevant to this appeal, that, in July 2010, he had responded to an advertisement that defendant car dealership had placed on the internet for a used 2007 Infiniti G35 car for $18,990; that, on July 18, 2010, at the dealership, defendant's employee had coerced plaintiff into contracting for the purchase of a "160 point certification" for the Infinifi which was, in fact, of no value; that, that day, plaintiff had signed loan applications defendant had provided, had signed a contract to purchase the Infiniti with the certification for $21,005, and had made a down payment towards the purchase; and that, on July 20, 2010, when he had returned to finalize his purchase, he had been presented with approximately $1,937 in additional, previously undisclosed fees and had been pressured into signing a second contract (described by defendant as a "superseding contract") that included those fees, under threat that he would otherwise lose his down payment or be charged other substantial amounts. In the contract for the purchase of the Infiniti, defendant allocated a $1,000 trade-in value to plaintiff's 2003 Nissan Altima automobile. Plaintiff asserted that, on July 20, 2010, when he had signed the second contract, given defendant possession of and title to the Altima, and taken possession of the Infiniti, defendant had informed him that only one lender, Valley National Bank, had approved his application for financing. The complaint further alleged that, approximately 10 days later, plaintiff had learned that his application for financing had been declined. Defendant requested the return of the Infiniti. Plaintiff sought to condition the return of the Infiniti upon the return of his $3,000 down payment and the Altima. Ultimately, allegedly under threat of arrest, plaintiff had returned the Infiniti to defendant. Defendant, however, had sold the Altima. It is uncontested that plaintiff never obtained return of either the Altima or his down payment. In the complaint, insofar as is relevant to this appeal, plaintiff stated causes of action for conversion, [*2]fraud, prima facie tort, and based on a violation of General Business Law § 349. Defendant counterclaimed for damages it had allegedly incurred in connection with its efforts to repossess the Infiniti.

Following pretrial discovery and some motion practice, the action was transferred to the Civil Court, Queens County, pursuant to CPLR 325 (d), where plaintiff moved for summary judgment. Plaintiff's motion was denied in its entirety, upon a finding by the Civil Court that there existed triable issues of fact, including, among others, the reasons that plaintiff's application for a bank loan had been denied, and whether there had been fraud or misrepresentation. The court also concluded that the resolution of some of the issues in the action would turn upon an assessment of the credibility of the witnesses. Plaintiff's appeal, as limited by his brief, challenges so much of the Civil Court's determination as denied the branches of his motion seeking summary judgment on his causes of action for conversion, fraud, prima facie tort, and based on a violation of General Business Law § 349.

Inasmuch as we agree with the Civil Court that there are issues of fact which require a trial, we affirm the order, insofar as appealed from.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 27, 2015