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Dunn v. BC Benjamin Auto Sales, Inc.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50697 (N.Y. App. Term 2015)

Opinion

2014-516 N C

05-01-2015

Michael J. Dunn, Respondent, v. BC Benjamin Auto Sales, Inc., Appellant.


PRESENT: : , IANNACCI and GARGUILO, JJ.

Appeal from a judgment of the District Court of Nassau County, Third District (Douglas J. Lerose, J.), entered June 18, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,723.77.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,715.52; as so modified, the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $4,945.86 for repairs that were made to a used car that he had bought from defendant car dealer, based on defendant's alleged violation of the Used Car Lemon Law (General Business Law § 198-b). At a nonjury trial, plaintiff testified that, on October 3, 2011, he had purchased from defendant a 2000 Corvette automobile (the car) with a reading of 65,393 miles on its odometer. Plaintiff stated that, within a day of its purchase, the car had failed to start; that defendant's representative had advised him by telephone to disconnect and reconnect the car's battery cables, which solution worked; but that defendant's representatives also told him they "would not touch" the car. Plaintiff further testified that he had never returned the car to defendant, at least in part because his residence was located 85 to 90 miles from defendant's dealership and he felt it was unsafe to drive the car that distance due to the fault in its starting mechanism.

Plaintiff stated that he brought the car to a repair shop in the Bronx, New York, which initially changed the car's ignition key in an attempt to address the problem with the car's starting mechanism. After that proposed solution proved ineffective, the Bronx mechanic reprogrammed, and ultimately replaced, the car's body control module (BCM), the latter of which repairs corrected the ignition problem. Plaintiff also testified that the exhaust pipe and hangar wires of the car had been repaired; the battery, windshield wiper motor, alarm, radio and front tires had been replaced; and the rear tires had been rebalanced. Plaintiff introduced paid bills for those items into evidence.

Defendant's owner, Christopher Vitucci, testified that the car had worked during the time it was at defendant's dealership, and claimed that, had plaintiff returned the car to defendant, defendant would have performed any required repairs.

Following the trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $3,723.77.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done 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, 126 [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).

Plaintiff premised his claims on the protections provided by the Used Car Lemon Law. Where a dealer sells a used car which has a reading of more than 36,000 miles but fewer than 80,000 miles on the odometer, the Used Car Lemon Law mandates that the dealer provide certain warranties, for a minimum of 60 days or 3,000 miles, whichever comes first (see General Business Law § 198-b [b] [1] [b]). It was undisputed that defendant had provided the warranties required under the Used Car Lemon Law.

The Used Car Lemon Law requires a dealer or his agent to repair, or, at the election of the dealer, to reimburse the consumer for the reasonable cost of repairing, a covered part which fails (see General Business Law § 198-b [b] [2]). While defendant contends on appeal that plaintiff was not entitled to recover under the Used Car Lemon Law because plaintiff failed to offer defendant an opportunity to repair the car's defects (see General Business Law § 198-b [c]), the District Court implicitly credited plaintiff's testimony that he had telephoned defendant about his problems with the car, and that defendant told him it "wouldn't touch" plaintiff's car. We find no basis to disturb this implicit finding. Defendant's refusal vitiated plaintiff's obligation to present the car to defendant for repairs.

We find that plaintiff failed to establish that a number of the repairs in issue were covered under the Used Car Lemon Law. Although plaintiff sought reimbursement for a new ignition key, he testified that the original key was not defective. The invoice for the battery for which plaintiff sought reimbursement was dated after the expiration of the warranty period, and, in any event, batteries were excluded from coverage under the limited warranty that was provided to plaintiff pursuant to the Used Car Lemon Law (see General Business Law § 198-b [b] [2] [g]). There was likewise no Used Car Lemon Law warranty coverage for the new windshield wiper motor, exhaust pipe and hangar wire repairs, radio and alarm system replacement, or rear tire rebalancing and front tire replacements. Some of the invoices for those items were also outside the temporal coverage of the warranty.

Plaintiff testified that, to solve the problem with the starter, he had the BCM first reprogrammed and then replaced, and he sought reimbursement for those costs. Starters and ignition systems excluding the battery are required to be warranted under the Used Car Lemon Law (see General Business Law § 198-b [b] [2] [g]). Although plaintiff failed to provide any expert testimony to explain the function of a BCM, or how it might be covered under the car's warranty, the evidence showed that, while the reprogramming of the BCM had not been effective to solve the problems with the car's starter mechanism, the replacement of the BCM did constitute an effective repair. Plaintiff introduced into evidence an itemized paid invoice which included the cost of replacing the BCM at $1,666.33 plus tax, for a total of $1,715.52, which was prima facie evidence of the reasonable value and necessity of such cost (see UDCA 1804). We conclude that, to render substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807), the judgment must be modified by reducing the award in favor of plaintiff to the principal sum of $1,715.52.

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

Decision Date: May 01, 2015


Summaries of

Dunn v. BC Benjamin Auto Sales, Inc.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50697 (N.Y. App. Term 2015)
Case details for

Dunn v. BC Benjamin Auto Sales, Inc.

Case Details

Full title:Michael J. Dunn, Respondent, v. BC Benjamin Auto Sales, Inc., Appellant.

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Date published: May 1, 2015

Citations

2015 N.Y. Slip Op. 50697 (N.Y. App. Term 2015)
16 N.Y.S.3d 791