Opinion
January 7, 1992
Appeal from the Civil Court of the City of New York, Kings County, David Friedman, J.
Wilson Elser Moskowitz Edelman Dicker (Jerold R. Ruderman and Bryon L. Friedman of counsel), for appellant.
Fisher Fisher for respondents.
MEMORANDUM.
Order unanimously modified by providing that the branch of plaintiff's motion seeking to dismiss the first counterclaim is granted and, as so modified, affirmed, without costs.
In 1983, the defendants leased a vehicle from Popular Ford Sales, Inc. The lease provided that upon its execution, it would be assigned to plaintiff Ford Motor Credit Company. The plaintiff instituted this action to recover the balance due under the lease. As a first counterclaim, the defendants alleged various negligent repairs which were performed by Popular Ford Sales, Inc. as well as another Ford dealer after defendants received notice of the assignment of the lease. In its analysis of the law, the lower court concluded that inasmuch as the counterclaim "relates to, and arises from the original lease" (Ford Motor Credit Co. v Sofia, 147 Misc.2d 651, 654), to the extent that the counterclaim seeks an offset, it states a cause of action.
Upon a review of the lease, we conclude that the repairs complained of do not relate to the lease. Said lease was labeled as nonmaintenance, and provided that the lessees were responsible for any and all repairs and that the lessor made "no promise as to the merchantability, suitability, or fitness for purpose of the vehicle". Moreover, the lease provided that it set forth all the agreements between the parties. Under the circumstances, there was no factual basis for the lower court's legal conclusion that the first counterclaim may be interposed against the lessor's assignee to the extent of an offset.
KASSOFF, P.J., MONTELEONE and SANTUCCI, JJ., concur.