uto Expo, LLC

[*1] uto Expo, LLC 2022 NY Slip Op 51370(U) Decided on December 22, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2022-181 S C

Lynsey Bieringer, Respondent,

against

Auto Expo, LLC, Appellant.

Auto Expo LLC, appellant pro se. Lynsey Bieringer, respondent pro se (no brief filed).

Appeal from a judgment of the District Court of Suffolk County, Second District (Garrett W. Swenson, J.), entered February 1, 2022. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,370.25.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $450.94; as so modified, the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $5,000 based on her May 23, 2019 purchase from defendant of an allegedly defective used 2012 Jeep Patriot vehicle with approximately 116,000 miles on its odometer. At a nonjury trial de novo (see Uniform Rules for Dist Cts [22 NYCRR] § 28.12), it was undisputed that plaintiff had paid defendant $189 to apply a protective undercoating to the vehicle. Plaintiff showed the court photographs to support her claim that defendant had instead sprayed paint onto the bottom of the vehicle, which paint had flaked off. Plaintiff further claimed that, immediately following her May 2019 purchase of the vehicle, a check engine light had gone on and that she had returned the vehicle to defendant, who failed to remedy the problem. Plaintiff submitted bills to the court which demonstrated that, between April and May 2020, she had paid third parties to replace the transmission assembly, traction light, exhaust manifold, and catalytic converter, and had also paid $144.94 for an evaporative emission control system (EVAP) detection pump and $117 for [*2]an EVAP purge solenoid.

Defendant's owner, Dana Rahimzadeh, denied that the vehicle had been sold with a warranty and asserted that it had passed inspection two days prior to the sale to plaintiff. He testified that he had sprayed undercoating onto the bottom of the vehicle prior to the sale. Rahimzadeh did not dispute that the check engine light had gone on shortly following plaintiff's purchase of the vehicle, but said that defendant had determined that the reason for this was a problem with the gas cap, which in turn is related to the EVAP system. He remarked that the vehicle had been driven almost 2,000 miles further when plaintiff brought it for an inspection at a Jeep dealership, where no problem had been found with either the catalytic converter or the transmission, and that the vehicle had been driven approximately 18,000 more miles and almost a year had passed when plaintiff incurred charges to replace the transmission assembly, the traction light, the exhaust manifold, the catalytic converter, and portions of the EVAP system.

Following the trial, based on plaintiff's photographs of the vehicle and a credibility finding, the court concluded that defendant had not applied undercoating to the vehicle. It found that plaintiff had brought the other problems for which she sought a recovery to defendant's attention within a short time following the purchase and that they were therefore covered by the implied warranty of merchantability. The court awarded plaintiff the principal sum of $3,370.25.

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]). 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 [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).

Plaintiff indicated in her testimony that she had expressly contracted for defendant to apply a rubbery undercoating to the vehicle, and we find that the court's determination that defendant breached its contract in this regard, and its inclusion in its award to plaintiff of the $189 cost for that service, rendered substantial justice between the parties (see UDCA 1804, 1807).

"Used cars . . . constitute 'goods' within the meaning of the Uniform Commercial Code (UCC 2-105) and, where sold by a 'merchant' (see UCC 2-104 [1]), are covered by the implied warranty of merchantability that, unless specifically excluded or modified as permitted under UCC 2-316, they are fit for the ordinary purposes for which they are intended to be used (UCC 2-314 [2] [c])" (Ewen v Congers Auto Sales, Inc., 39 Misc 3d 145[A], 2013 NY Slip Op 50844[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; see also Santiago v Parker Ave. Xtra, Inc., 40 Misc 3d 130[A], 2013 NY Slip Op 51117[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).
To recover under the implied warranty of merchantability, a plaintiff must demonstrate that the defects complained of "rendered the car unfit for the ordinary purposes for which it was intended [*3]to be used or otherwise constituted a breach of the implied warranty of merchantability at the time the car was delivered to [the] plaintiff" (Ewen v Congers Auto Sales, Inc., 2013 NY Slip Op 50844[U], *2 [citations omitted]). Since there was evidence that there had been a defect in the EVAP system at the time of plaintiff's purchase of the vehicle, to the extent that, upon a finding that defendant had violated the implied warranty of merchantability, the District Court awarded plaintiff $261.94, reflecting the total sum that plaintiff had paid to repair the EVAP system, the judgment rendered substantial justice between the parties (see UDCA 1804, 1807).

However, plaintiff failed to establish that the vehicle was otherwise unfit for the ordinary purposes for it was intended to be used at the time of the purchase. Thus, to the extent that the judgment was based on 2020 invoices to plaintiff for charges pertaining to the vehicle's transmission assembly, exhaust manifold, and catalytic converter, the judgment failed to render substantial justice between the parties (see UDCA 1804, 1807).

Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $450.94.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2022