Opinion
2002-1660 N C.
Decided November 21, 2003.
Appeal by plaintiff from a commercial claims judgment of the District Court, Nassau County (N. Janowitz, J.), entered April 30, 2002, which dismissed the action and awarded defendant $802 on the counterclaim.
Judgment unanimously reversed without costs, judgment directed to be entered in favor of plaintiff in the principal sum of $802 and defendant's counterclaim dismissed.
PRESENT: DOYLE, P.J., WINICK and LIFSON, JJ.
In this commercial claims action, plaintiff sought to recover the balance of the cost to repair the engine as well as other maintenance work performed on the boat which it sold to defendant. Defendant counterclaimed, based on breach of warranty, for the return of the money he paid to plaintiff representing half of the aforementioned costs. After reviewing the testimony of both parties, it is clear that the parties entered into an oral agreement whereby plaintiff was to repair the boat's engine for $1,000. In addition, defendant requested other maintenance work. The bill for the repair of the boat's engine totaled $1,044.61 and the bill for the additional maintenance work totaled $560. Since defendant only paid half of the aforementioned sums, he breached the subject oral agreement and is therefore liable for the outstanding balance.
Furthermore, inasmuch as plaintiff made no express warranty and the bill of sale specifically stated that the boat was being "sold as is" thereby excluding all implied warranties ( see UCC 2-316 [a]), defendant's counterclaim for breach of warranty should be dismissed.