Opinion
December 28, 1970
In an action to recover damages for personal injuries, medical expenses, etc., defendant American Motors Corp. and defendant and third-party plaintiff M.A. Hittner Sons, Inc., appeal, as limited by their briefs, from the portions of a judgment of the Supreme Court, Kings County, dated January 6, 1970, which are against them. Said portions of the judgment are (1) in favor of plaintiffs against said defendants, upon a jury verdict, (2) in favor of said defendant Hittner on its cross claim against said defendant American, upon the trial court's decision, and (3) against said defendant Hittner on its third-party complaint against K K Rambler, Inc. Judgment affirmed insofar as appealed from, with one bill of costs to plaintiffs jointly against appellants. Plaintiffs were injured when the left front part of the rented automobile that plaintiff Maurice J. Sarfati was driving allegedly began to shake and then fell down to the roadway. Defendant American Motors Corp. was the manufacturer of the vehicle and defendant Hittner was its lessor. The case was submitted to the jury on the issue of breach of warranty. On the basis of the entire evidence, including the expert testimony, we are of the opinion that a question of fact as to a breach of implied warranty by both the manufacturer and the lessor, due to a latent defect in the vehicle which was present at the time of manufacture and which was passed on by the lessor to plaintiffs, was properly submitted for the jury's determination ( Greenberg v. Lorenz, 9 N.Y.2d 195; McNally v. Chrysler Motors Corp., 55 Misc.2d 128; Hoisting Engine Sales Co. v. Hart, 237 N.Y. 30; Rooney v. S.A. Healy Co., 20 N.Y.2d 42). Defendant American Motors contends that judgment over should not have been awarded to Hittner on its cross claim against American for breach of warranty. American contends that its warranty was express, and excluded all other warranties including implied warranties of merchantability and fitness for a particular use, and that such a disclaimer is valid as between American and Hittner under section 2-316 of the Uniform Commercial Code, which provides for the negation of implied warranties by express warranties except where such construction is unreasonable. We disagree with American's contention. There was no answer of American to Hittner's cross claim in the record on appeal or recited in the index of the record. An answer to a cross claim must be served within 20 days after service of the cross claim (CPLR 3011, 3012, subd. [a]). Consequently, American is deemed to have admitted the allegations of the cross claim and is barred from attempting to raise an affirmative defense which was never pleaded (CPLR 3018). Moreover, it has been held in this State that such a disclaimer as applied to purchasers of automobiles is unconscionable and against public policy ( Walsh v. Ford Motor Co., 59 Misc.2d 241; see, also, Wilson Trading Corp. v. David Ferguson, Ltd., 23 N.Y.2d 398). The lessor herein, Hittner, is in no better commercial position than the consumer. It is in no position to alter the warranty or negotiate for better protection and, consequently, American's disclaimer of warranty is equally unconscionable as to the lessor of the vehicle (see Henningsen v. Bloomfield Motors, 32 N.J. 358). We have examined appellants' other contentions and find them to be without merit. Martuscello, Latham and Brennan, JJ., concur; Hopkins, Acting P.J., and Benjamin, J., concur only on the ground that the disclaimer is unconscionable and against public policy.