Neil v Parker Ave. Xtra, Inc.

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[*1] Neil v Parker Ave. Xtra, Inc. 2012 NY Slip Op 50363(U) Decided on February 22, 2012 City Court Of Poughkeepsie Mora, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2012
City Court of Poughkeepsie

Shari Neil, Plaintiff,


Parker Avenue Xtra, Inc., Defendant.


Shari Neil

Pro se Plaintiff

16 Fountain Place

Poughkeepsie, NY 12603

Wadie Nesheiwat

Parker Avenue Xtra, Inc.

Pro se defendant

223 Parker Avenue

Poughkeepsie, NY 12601

New York State Attorney General

Consumer Protection Division

235 Main Street, 3rd Floor

Poughkeepsie, NY 12601-3144

Frank M. Mora, J.

Plaintiff is suing defendant seeking to recover $5,000.00, said sum representing the value of an automobile that plaintiff purchased from the defendant's used car sales business. Plaintiff claims that the defendant sold her a car that he had to have known was defective. The defendant argues that the car was not defective and that plaintiff first complained of car problems after the warranty had expired. A trial on the matter was held on December 6, 2011. Both parties proceeded pro se. The plaintiff testified and called three (3) witnesses in support of her claim. The defendant appeared through its owner, Wadie Nesheiwat, and called one (1) witness, his son Mike Nesheiwat , in support of his defense. The parties consented to amend the caption to reflect the proper name of the defendant: Parker Avenue Xtra, Inc. The Court having duly deliberated upon the evidence introduced at trial, hereby finds and determines the matter as follows:


It is undisputed by the parties that on May 20, 2011, the plaintiff purchased a 2003 Acura 3.2 TL Type S vehicle with 137,940 miles from the defendant for $7,500.00 and that the car was paid for in full. The defendant testified that the sale of the vehicle was accompanied by a 30-day or 1,000 mile warranty. It is further undisputed that on July 1, 2011, the plaintiff purchased an extended 6-month or 7,500 mile warranty from the defendant. Defendant's Exhibit A. The plaintiff testified that she asked Mike Nesheiwat, the defendant's sales representative (and the owner's son), if there was [*2]anything wrong with the car, he told her, "No." Plaintiff introduced no documentary evidence at the trial concerning the sale of the vehicle.

The dispute between the parties centers upon when the plaintiff began to experience mechanical problems with the vehicle and whether the defendant concealed the problems when he sold her the car. The plaintiff testified that she experienced problems right away and described how the car would jump and make noises right after she bought it. Plaintiff could not state how many miles she had driven when she first noticed a problem. She could only state that it was a couple of hundred miles. In particular, she testified that she drove the car to the airport and drove it a couple of times to New York City, and that the car started to have mechanical problems at the beginning of June 2011 - just a few weeks after she purchased the car. She testified that the car would just stop and was pulling as she drove it. She testified that she called Mike Nesheiwat and he suggested that the car may need an oil change. She brought the car in and Mike Nesheiwat had the car serviced with the oil that the plaintiff purchased. Despite the oil change, plaintiff continued to experience problems with the car. Plaintiff also testified that the defendant put two (2) bad tires on the car, making it unsafe to drive, and that she has not driven the car because she is afraid it is mechanically unsafe to drive. Plaintiff further testified that following Mike Nesheiwat's recommendation, she brought the car to Doxsey's Auto Transmission Specialists to have the transmission replaced. She further claims that Wadie Nesheiwat promised her that if she purchased the parts for a new transmission, the defendant would pay for the labor to install the transmission. Plaintiff had two witnesses testify who corroborated this promise to pay for the labor to install a new transmission. Upon bringing Wadie Nesheiwat the estimate for labor on the transmission, she claims he refused to fulfill his promise to pay for the labor.

Plaintiff introduced an invoice corroborating the work that Doxsey's performed on her car. Plaintiff's Exhibit 2. A close reading of the invoice reveals that Doxsey's started repairs on the car on July 15, 2011 and finished repairs on August 26, 2011. The invoice indicates that Doxsey's was reimbursed $1,403.50 through the Penn Warranty - which paid for a portion of the repairs covered by the extended warranty that plaintiff purchased. Plaintiff's Exhibit 2. This payment was confirmed by defendant's evidence which also demonstrated that Doxsey's was paid $1,403.50 to install a transmission in plaintiff's car. Defendant's Exhibit B. The invoice states that plaintiff agreed to pay the balance of $239.01 for the repairs. Plaintiff's Exhibit 2. Approximately 600 miles after Doxsey's repairs, the car had to be towed from the Bronx, because it started to smoke while plaintiff was driving on the Taconic State Parkway. Plaintiff's Exhibits 1 and 2. Once back at Doxsey's, a starter assembly was replaced and tests were run on the car and the mechanic found there to be no problems with the car - at least according to the invoice introduced by plaintiff. Plaintiff's Exhibit 1. Notwithstanding the remarks on the invoice, the plaintiff testified that she has not driven the car.

Mike Nesheiwat, who was called by the defense, testified that plaintiff first complained of problems with the vehicle after the warranty had expired. More specifically, Mike Nesheiwat testified that the plaintiff brought the car in on June 20, 2011 complaining of transmission problems and at that time, the car had 140,176 miles on it - nearly 3,000 miles over the warranty. As a result, Mike Nesheiwat claims that he recommended to plaintiff that she purchase an extended warranty on the vehicle, which ultimately paid for the transmission to be replaced. Plaintiff purchased a 6-month/7,500 mile extended warranty for $285.00 from the defendant. Defendant argues that it cannot be held responsible for problems to the vehicle that arose after the 30-day/1,000 mile [*3]warranty expired, and that any problems arising out of the transmission are not his responsibility, but that of Doxsey's - the auto repair shop that replaced the transmission. Insofar as plaintiff's claim is based upon defendant selling her a bad car that he knew or should have known was not mechanically sound, the defendant denies these claims.


This Court is empowered by statute to adjudicate small claims in such a manner as to do "substantial justice" between the parties according to the rules of substantive law. Uniform City Court Act §1804. The party bringing the small claim has the burden of proof and may not obtain a judgment unless he or she has demonstrated a prima facie case of liability on the part of the other party. Tedeschi v. Crocker, 23 Misc 3d 1134(A); 889 N.Y.S.2d 508 (Poughkeepsie City Court 2009); Sanders v. Hudson Valley Federal Credit Union, 23 Misc 3d 1134(A); 889 N.Y.S.2d 507 (Poughkeepsie City Court 2009); Bowen v. Dunn, 306 AD2d 929 (4th Dept. 2003). Here, plaintiff has failed to meet her burden.

In part, plaintiff's cause of action seeking to recover payment for the labor on the transmission installation is based upon breach of an oral contract. Recovery under this theory is not dependent on the existence of an actual contract, as long as there is an offer, acceptance, and consideration exchanged between the parties. A contract is "a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty." Restatement of Contracts 2nd § 1. The formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration. Restatement of Contracts 2nd § 17. "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Restatement of Contracts § 90(1). A party's failure to render performance of a contract may be affected by the other party's duties. Restatement of Contracts § 267. Moreover, a party's prospective failure to perform may discharge the other party's duties to allow him to suspend performance. Restatement of Contracts § 268. The inherent difficulty in deciding actions for breach of an oral contractis that without a writing to refer to, each party to the contract has his own version of what the promise was between the parties. As such, the Court is left to determine whose version of the promise is supported by the credible evidence before it. In assessing the truthfulness and accuracy of the testimony of each of the parties, it is the quality of the testimony that is controlling. While there is no particular formula to evaluate the truthfulness and accuracy of a party's testimony, this Court is empowered as the exclusive trier of the facts to make its findings in large measure on considerations relating to the credibility of the witnesses who testified. JD Sports, Inc. v. D'Amico, 19 Misc 3d 134A (2d Dept. 2008). It is well settled that the deference normally afforded to trial court's credibility determinations, "applies with greater force" in a small claims action. Srinivasan v. Silvi, 19 Misc 3d 138A (2d Dept. 2008).

Here, while the defendant disputes that he promised to pay for the labor to install the transmission, the plaintiff's testimony was corroborated by two witnesses - both of whom confirmed that Mr. Nesheiwat promised to pay for the labor to install the transmission on the vehicle. On the other hand, the warranty paid for the labor. As such, it is the finding of this Court that substantial justice would be not be served by having the plaintiff reimbursed for an expense to install the transmission that her warranty already covered. [*4]

Insofar as the vehicle's other mechanical problems are concerned, it is indisputable that the automobile was not covered under the "Used Car Lemon Law" since the mileage of the vehicle was over 100,000 at the time of the sale. General Business Law §198-b.Notwithstanding same, there exists a warranty of serviceability [see, Vehicle and Traffic Law §417; Natale v. Martin Volkswagen, Inc., 92 Misc 2d 1046 (Utica City Court, 1978)], as well as a warranty of merchantability. U.C.C. § 2-314. Indeed, the fact that a defect manifests itself after the warranty period has expired, does not bar a consumer from recovery. Barilla v. Gunn Buick-Cadillac-GMC, Inc., 139 Misc 2d 496, 503 (Oswego City Court 1988) citing Armstrong v. Boyce, 135 Misc 2d 148, 155 (Watertown City Ct 1987), citing Matter of Ann-Son Auto Sales v. Comm. of Dept. Of Motor Vehicle, 83 AD2d 759 (4th Dept. 1981); Rice v. Burritt Motors, 124 Misc 2d 712 (Oswego City Ct 1984).

Yet, the plaintiff in this case not only failed to introduce any documentary evidence relative to the sale of her vehicle, but also failed to introduce expert testimony that the vehicle was in fact defective to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery. See Barilla, supra at 504.There is simply no evidence proving that either the defendant failed to provide her with the certificates required under Vehicle and Traffic Law § 417 or that the car was defective when delivered to her. While plaintiff introduced testimonial evidence that the car had some things wrong with it, she countered that very evidence with her invoice from Doxsey's that stated there were "no problems with the car" (Plaintiff's Exhibit 1). The Court credits plaintiff's testimony that the defendant expressly warranted that there was nothing wrong with the car when specifically asked by plaintiff (see, U.C.C.§ 2-313). However, at the same time, plaintiff introduced no credible evidence to support her claim that the defendant knew or had to have known that there was something wrong with the car, and introduced nothing to dispel defendant's argument that if something was wrong with the transmission, then the responsible party was not defendant, but the Auto Repair Shop who replaced her transmission.

Notwithstanding the finding that plaintiff failed to meet her burden of proof, this Court is compelled to address what it finds to be a persistent pattern of conduct by defendant's business and Mike Nesheiwat. The defendant and Mike Nesheiwat have appeared before this Court innumerable times involving consumer complaints all relating to the sale of vehicles in the City of Poughkeepsie.[FN1] This Court has had the opportunity to hear extensive testimony and documentary proof that strongly implies that the defendant, and its employee, Michael Nesheiwat, appear to be engaging in fraudulent or illegal consumer practices while carrying on, conducting, and transacting its licensed business. [*5]Under the duty vested upon this Court pursuant to U.C.C.A. § 1805(d), this Court hereby refers this matter to the New York State Attorney General's Office for further investigation.

Moreover, the Court alerts the plaintiff of her right to file a complaint with the New York State Attorney General as well as with any other state or local licensing or certifying authority concerning this matter. U.C.C.A. § 1805(d).

THEREFORE, based upon the foregoing, this Court finds that the plaintiff has failed to meet her burden of proof, and it is now

ORDERED, that the caption be amended to reflect the defendant's proper business name as: Parker Avenue Xtra, Inc.; and it is further

ORDERED, that judgment is awarded in favor of the defendant.

ORDERED, that the Clerk of this Court file a copy of this Decision and Order with the New York State Attorney General's Office for further investigation.


Dated: February __, 2012

Poughkeepsie, New York_______________________



ENTERED this ____ day of February 2012_________________________


An appeal from this judgment must be taken no later than the earliest of the following dates: (I) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after the personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action. Footnotes

Footnote 1: Within the past few years, there have been several cases brought against auto sales businesses with which Mike Nesheiwat is connected to in the City of Poughkeepsie. All of the various plaintiffs' claims relate to the sale of a vehicle from Mike Nesheiwat who is associated with several auto sales businesses, including this one (Parker Avenue Xtra, Inc.). The various claims include the following cases:

Dalmain Grant v. Mike's Auto Center II - Index No. SC-08-215

Krista Costantini v. Mike's Auto II - Index No. SC-09-1553

Ashonta Carter v. Mike's Auto 2/Shawn Nesheiwat - Index No. SC-09-1616

Cynthia A. Jackson v. Mike's Auto Center Inc. & Mike Nesheiwat - Index No. SC-10-1016

Bernell Thomas v. Mike's Auto Center Inc. - Index No. SC-10-3132

Natasha Arnold v. Mike's Auto Center II - Index No. SC-10-3483

Angela Lee v. Mike's Auto Center - Index No. SC-11-1681

Starr Gales v. Xtra Auto Sales - Index No. SC-11-3193