Opinion
June 4, 1984
In an action to recover damages for fraud, defendant World-Wide Volkswagen Corp. appeals from so much of an order of the Supreme Court, Rockland County (Walsh, J.), entered January 10, 1983, as denied its motion for summary judgment dismissing the complaint as against it pursuant to CPLR 3212, or in the alternative, dismissing the complaint as to it pursuant to CPLR 3211 (subd [a], par 7) and 3016 (subd [e]). ¶ Order reversed insofar as appealed from, on the law, with costs, motion insofar as it sought summary judgment dismissing the complaint as against appellant granted, and motion otherwise denied as moot. ¶ Underlying plaintiff's action is her claim that the appellant and the dealers to whom it sells both diesel-powered and gasoline-powered Volkswagen automobiles and parts, double charged purchasers of dealer installed air conditioning in the diesel-powered Volkswagens for component parts which were already standard equipment in said automobiles. It is plaintiff's claim that in view of the fact that the cost of installing air conditioning in both gasoline-powered and diesel-powered Volkswagens are the same or within a few dollars of each other, there is an overcharge which is concealed from the purchasers of diesel Volkswagens, thus constituting a fraud upon such purchasers. ¶ In support of this claim, the plaintiff submitted pages from a brochure showing that the "Air-Conditioning Package" includes "Heavy duty" electrical equipment which is admittedly standard equipment in diesel-powered Volkswagens. ¶ Uncontested by any evidentiary showing to the contrary is appellant's clear and unequivocal assertion that there is a difference between an "Air-Conditioning Package" and an air conditioning "kit". ¶ The "kit" consists of the air conditioning unit itself, i.e., the compressor, evaporator, condenser, expansion valve, clutch, pulley and belts along with accessory wires and switch controls. The "package" consists of a "kit" plus a heavy-duty electrical package, consisting of a heavy-duty, "200 W" fan, a "54 AH" battery and "65 AMP" alternator, the standard equipment in diesel-powered Volkswagens. It is the former which is installed in the diesels. While the gas models may also utilize a "kit", the "package" is usually recommended for more efficient operation, and if factory installed, the "package" rather than the "kit" is always utilized, at an increased charge to the purchaser. ¶ Plaintiff has set forth no evidence of double charging by appellant. Nor has plaintiff controverted appellant's assertion that it is merely the distributor of Volkswagen vehicles for the States of New York, New Jersey and Connecticut and that it does not fix the price at which a retail dealer sells to the customer, nor has plaintiff shown any other alleged fraudulent acts on the part of appellant. ¶ Upon the record before us, plaintiff has failed to come forward with facts which raise bona fide triable issues (see Barr v. County of Albany, 50 N.Y.2d 247, 257-258; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Fishman v. County of Nassau, 84 A.D.2d 806). Gibbons, J.P., Bracken, Weinstein and Lawrence, JJ., concur.