Bulsara v Chami

[*1] Bulsara v Chami 2016 NY Slip Op 50696(U) Decided on April 25, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., and GARGUILO, J.


2014-1465 N CKamlesh Bulsara, Respondent,

against

Khoder Chami, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Joy M. Watson, J.), entered December 9, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,300.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a judgment dismissing the action.

In this small claims action, plaintiff seeks to recover the sum he paid defendant for the purchase of a used Jetta Volkswagen automobile. At a nonjury trial, the parties agreed that, after plaintiff had taken the car for a test drive, he purchased it from defendant for $3,400. Although the parties disagreed as to the timing of plaintiff's complaints, it was undisputed that, after buying the car, plaintiff complained to defendant that the "gas fault light" was missing, the speedometer needle did not work, and the inspection sticker on the car was for a different vehicle. Plaintiff further testified that, following the purchase, he brought the car to his mechanic and first learned that there were problems with its catalytic converter and a sensor, and that the car had been in an accident and had been "salvaged." Defendant refused to comply with plaintiff's demand for a revocation of the sale.

Defendant testified that, after he had acquired the car, he drove it for 200 miles without problems before he sold it to plaintiff. Defendant claimed that the car showed signs of vandalism that had occurred after plaintiff had bought it. Plaintiff denied the possibility of such an occurrence.

Following the trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $3,300.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

Upon our review of the record, we find that plaintiff did not meet his burden of [*2]establishing a basis for liability on the part of defendant. Without consideration of whether, because of its mileage, the car otherwise fell within the protections of General Business Law § 198-b, the Used Car Lemon Law (see General Business Law §198-b [d] [3]; [f] [3] [c]; Ewen v Congers Auto Sales, Inc., 39 Misc 3d 145[A], 2013 NY Slip Op 50844[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]), we find that no liability can be imposed on defendant under the Used Car Lemon Law, since there was no proof that defendant was a "dealer" (see General Business Law § 198-b [a] [3]). Similarly, as there was no proof that defendant was a "merchant" of motor vehicles (see UCC 2-104 [1]), no implied warranty of merchantability arose with the sale (see UCC 2-314; see also Massaquoi v Arias, 43 Misc 3d 128[A], 2014 NY Slip Op 50480[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Plaintiff also failed to establish any express warranty created by defendant (see UCC 2-313). Nor did plaintiff demonstrate that the car was not in conformity with the contract (see UCC 2-714). Rather, the defects of which plaintiff complained were "items which would be readily ascertainable upon a proper mechanical inspection" (Dorneles v Carpenito, 137 Misc 2d 469, 472 [Yonkers City Ct 1987]). Absent specific statutory protection, "the law in New York with regard to car purchases between private citizens is generally caveat emptor' (let the buyer beware)" (id.).

We further conclude that plaintiff failed to establish a basis upon which to revoke his acceptance of the car (see UCC 2-608). In general, a buyer who knew of a "non-conformity" in goods he accepted is precluded from revoking his acceptance of the goods unless he can establish that he had a reasonable basis for assuming that the "non-conformity would be seasonably cured" (UCC 2-607 [2], [4]; see UCC 2-608). A buyer seeking to revoke his acceptance of goods based on a "non-conformity" of which he was unaware at the time of acceptance may only revoke his acceptance if it is established that his acceptance of the goods was reasonably induced either by the difficulty of discovering the defects prior to his acceptance of the goods, or by the seller's assurances (see UCC 2-608 [1] [b]). In our view, plaintiff failed to prove the existence of any defects in the car which were difficult to discover, nor did he otherwise meet his burden to show that revocation of acceptance of the car was warranted under the circumstances.

As plaintiff failed to establish any basis for defendant's liability, we conclude that the judgment in favor of plaintiff failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).

Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment dismissing the action.

Marano, P.J., and Garguilo, J., concur.

Decision Date: April 25, 2016