Opinion
No. 2021-547 N C
10-14-2022
Francis Q. Christopher, Respondent, v. Edmond Topakian and Precision AutoWorks, Appellants, Georgeiu I. Kamberov, Defendant.
Edmond Topakian, appellant pro se. Francis Q. Christopher, respondent pro se (no brief filed).
Unpublished Opinion
Edmond Topakian, appellant pro se.
Francis Q. Christopher, respondent pro se (no brief filed).
PRESENT:: ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ
Appeal from a judgment of the District Court of Nassau County, Fourth District (David I. Levine, J.), entered August 25, 2021. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $1,600 against defendants Edmond Topakian and Precision AutoWorks.
ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for the entry of a judgment dismissing the action against defendants Edmond Topakian and Precision AutoWorks.
In this small claims action, plaintiff seeks to recover the principal sum of $3,300, based on his purchase of an allegedly defective used 2001 Volkswagen automobile. Plaintiff's testimony at the nonjury trial established that, although plaintiff had initially thought that the car was a 2003 Volkswagen with approximately 88,000 miles on the odometer, he had taken it for a test drive and knew that it was a 2001 Volkswagen with approximately 111,000 miles on the odometer when he purchased it, in the summer of 2020, for $1,600 from defendant Edmond Topakian's business, defendant Precision AutoWorks (Precision). The receipt stated that the car was sold with "no warranty as is. Thank you. No Refunds." The same day as the purchase, the car broke down and was towed to Precision, which repaired it and returned it to plaintiff within one or two days. There was no evidence as to what the initial repair entailed.
While plaintiff failed to testify as to the exact date of his purchase, his evidence indicated that, following the initial repair, he drove the car for close to a month before returning it to Precision for additional repairs in early September 2020. Plaintiff paid $426 for the installation of a used replacement turbocharger, gaskets, oil and coolant. The car overheated soon after plaintiff regained possession of it, whereupon he took it to an AutoZone mechanic, who, plaintiff said, had diagnosed a problem with the timing belt. An "AutoZone Health Report" plaintiff introduced into evidence referred to a problem with the Bank 1 Intake Camshaft Position Timing and the Bank 1 Fuel Trim. The vehicle identification number (VIN) on the AutoZone Health Report differed from the VIN for the car plaintiff had purchased from defendant Precision and set forth "mileage reported" of 190,000.
Plaintiff stated that he sought to recover $3,300 based on the purchase price and other charges he had incurred, such as automobile insurance and payments he had made to Uber drivers while the car was out of service. He failed, however, to document those expenses.
Defendant Topakian testified that he had driven the car for six months with no problems prior to its sale to plaintiff. He said that, shortly following plaintiff's purchase of the car, it had stalled because it had run out of gas. Mr. Topakian attributed other problems that arose following the purchase to plaintiff's poor driving technique.
Following the trial, the District Court awarded plaintiff a judgment in the principal sum of $1,600. Topakian and Precision appeal from so much of the judgment as is against them.
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 A.D.2d 584 [2000]; Williams v Roper, 269 A.D.2d 125, 126 [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 A.D.2d 564 [1992]; Kincade v Kincade, 178 A.D.2d 510, 511 [1991]). However, even though this deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 A.D.2d at 126), in reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts (see Omwathath v Mootoosammy, 55 Misc.3d 136 [A], 2017 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499 [1983]).
Since defendant Topakian was served at his place of business within Nassau County, there is no merit to his contention that, because he resided outside the State of New York, he was not subject to the jurisdiction of the District Court of Nassau County (see UDCA 1801, 1803). We also reject his claim that he could not be liable for Precision's actions, since he testified that Precision was his company and he did not indicate that it is incorporated.
However, since the car had over 100,000 miles on its odometer, plaintiff was not entitled to any protection under the Used Car Lemon Law (see General Business Law § 198-b [b] [1], [2]). While defendant Topakian implicitly warranted that the car was "in condition and repair to render satisfactory and adequate service upon the public highway at the time of delivery" (Vehicle and Traffic Law § 417), plaintiff failed to identify the reason that the car was towed on its first day of use, and, after it was repaired, plaintiff continued to use the car for almost a month. Thus, plaintiff failed to establish defendant Topakian's liability under Vehicle and Traffic Law § 417. Without reaching the issue of whether the exclusions of warranties on the bill of sale and receipt for the car were sufficient to exclude any implied warranties (see UCC 2-316 [2], [3] [a]), we find that, in any event, plaintiff failed to adequately prove that the car had specific defects which rendered it unfit for the ordinary purposes for which it was intended to be used or otherwise constituted a breach of the implied warranty of merchantability at the time of the sale (see Morris v Dunaif, 59 Misc.3d 129 [A], 2018 NY Slip Op 50409[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Ewen v Congers Auto Sales, Inc., 39 Misc.3d 145[A], 2013 NY Slip Op 50844[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). Thus, the evidence was inadequate to support a judgment in favor of plaintiff under any theory of liability. Consequently, the judgment did not provide the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807).
Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the District Court for the entry of a judgment dismissing the action against defendants Edmond Topakian and Precision AutoWorks.
EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur.