Opinion
May 21, 1976
Appeal from the Monroe Special Term.
Present — Marsh, P.J., Cardamone, Dillon, Goldman and Witmer, JJ.
Order and judgment unanimously reversed, with costs, and motion denied. Memorandum: In this action to rescind a contract for the purchase of an automobile on the ground of the buyer's infancy, Special Term granted plaintiffs' motion for summary judgment. Admittedly, the purported buyer, in whose name the receipts for the purchase price were made and to whom the certificate of registration was issued, was an infant. In opposition to the motion defendants allege that in fact the transaction was made between them and the infant's father, the plaintiff herein; that he testdrove the vehicle, made the purchase and made the two payments for the purchase price; and that hence there is no right of rescission in the absence of proof of fraud or misrepresentation with respect to the automobile. Special Term held that because defendants did not controvert plaintiffs' affidavit, receipts and certificate of registration by a presentation of other documentary proof, no question of fact exists, and so granted summary judgment. However, defendants' only obligation in defense of the motion was to present a plausible issue of fact (Falk v Goodman, 7 N.Y.2d 87, 91; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). The sale was consummated orally, with certain documentary evidence thereof. Thus, the rule against the admission of oral evidence to vary the terms of a written agreement does not apply (see 7 Encyclopedia of New York Law, Contracts, § 2122). In any event, whether the parol evidence rule will permit defendants to prove their contention that the purchase was made by the plaintiff father is a question which should await the proof presented at a trial (Exchange Leasing Corp. v Bundy, 29 A.D.2d 828; and see Bourgeois v Celentano, 10 A.D.2d 824, lv to app den, 8 N.Y.2d 708; Raybin v Raybin, 15 A.D.2d 679).