Opinion
11293/00.
Decided May 28, 2004.
Movant/defendant Donzi Marine, Inc. was represented by Kennedy Lillis Schmidt English.
Cross movant/defendant Chesapeake Atlantic Yacht Sales, Ltd. was represented by Law Offices of Ted Tobias.
Cross movants/plaintiffs were represented by Lawrence Bernstein, Esq.
Upon the foregoing papers, the motion of defendant DONZI MARINE INC. and the cross motion of defendant CHESAPEAKE ATLANTIC YACHT SALES, LTD. for summary judgment are granted; plaintiffs' cross motion for leave to serve an amended complaint is denied.
Plaintiffs commenced this action alleging breach of contract, fraud and breach of express and implied warranties in connection with the purchase of a sport boat named the "DONZI 33 ZX". Plaintiffs seek, inter alia, recission and compensatory and punitive damages. Defendant DONZI MARINE INC. (hereinafter DONZI) manufactures and sells boat including the DONZI 33 ZX. It appears that DONZI sold the subject boat to defendant CHESAPEAKE ATLANTIC YACHT SALES, LTD. (hereinafter CHESAPEAKE), which is an authorized DONZI dealer. CHESAPEAKE allegedly sold the boat to third-party defendants DINA MARIE PULICE and JAMES TOTO, who allegedly traded the subject boat to defendant CAPE ISLAND YACHT SALES, LTD. (hereinafter CAPE ISLAND) in connection with the purchase of a new boat. Plaintiffs purchased the subject boat from CAPE ISLAND.
The action against third-party defendants DINA MARIE PULICE and JAMES TOTO was previously dismissed.
In moving for summary judgment, DONZI contends that plaintiffs' causes of action alleging recission and breach of express and implied warranties of merchantability must be dismissed due to the absence of privity between themselves and DONZI. DONZI also contends that its Limited Warranty clearly excludes and replaces all other warranties, whether express or implied, including any implied warranty of merchantability or fitness for particular purpose. Finally, DONZI contends that its warranty limits plaintiffs' damages to economic losses caused by the allegedly defective product, and limits its obligation to the repair or replacement of any covered item found to be defective.
Regarding plaintiffs' cause of action for fraud, DONZI contends that it lacks the specificity and detail required under CPLR 3016(b). DONZI also contends that any tort causes of action alleged by plaintiffs are covered by maritime law, under which economic losses are only recoverable under contract or warranty. Since plaintiffs allegations of economic loss relate to damages or defects in the boat itself, DONZI contends that their remedies are limited to the DONZI warranty.
In cross-moving for summary judgment, CHESAPEAKE contends that it had no dealings with plaintiffs with regard to the sale of the subject boat; that it never entered into any contract with plaintiffs; and that there were no representations or warranties made to them by CHESAPEAKE. CHESAPEAKE further contends that since there was no contract between it and plaintiffs, plaintiffs' cause of action against it for breach of contract must be dismissed. In addition, CHESAPEAKE contends that plaintiffs' causes of action for breach of express and implied warranties must also be dismissed, since it did not sell the subject boat to plaintiffs; there were no verbal or written warranties made by it to plaintiffs; and there is no privity between itself and plaintiffs. Finally, CHESAPEAKE contends that plaintiffs' cause of action sounding in fraud must also be dismissed as there were no dealings of any kind between itself and plaintiffs.
In opposition to DONZI and CHESAPEAKE's summary judgment motions, plaintiffs contend that questions of fact exist regarding CHESAPEAKE's ownership of the subject boat at the time of plaintiffs' purchase. According to plaintiffs, they were advised that CHESAPEAKE was the seller; that they were buying a new boat, and that third-party defendant PULICE told plaintiff JOSEPH VERDINO that he had never owned the boat in question. In support, plaintiffs submit the "Certificate of Origin" issued to plaintiffs when they purchased the boat, which indicates that CHESAPEAKE was the previous owner. Plaintiffs also contend that further issues of fact exist regarding ownership of the boat, since CAPE ISLAND has claimed that it was acting as CHESAPEAKE's agent with respect to the sale of the subject boat.
With respect to DONZI's motion, plaintiffs contend that issues of fact exist regarding whether DONZI retained ownership of the boat at the time of plaintiffs' purchase. Plaintiffs further contend that a discrepancy in the date listed on the Manufacturer's Certificate of Origin (May 30, 1997) and the date of sale listed on the Application for Adjustment of Warranty Material (June 6, 1996) raise an issue of fact as to whether DONZI actually sold the boat to CHESAPEAKE. According to plaintiffs, unless it is established that CHESAPEAKE had absolute title to the boat, privity exists between DONZI and themselves. Under these circumstances, there would be a contract in existence between plaintiffs and DONZI that plaintiffs could rescind. Plaintiffs also contend that DONZI's limited warranty only applies to new boats, and that since the boat sold to them was not new, but was used and tested as a prototype boat, the warranty is inapplicable in this case. With respect to their cause of action for fraud, plaintiffs contend that this cause of action is sufficiently pleaded.
In support of their cross motion, plaintiffs seek leave to amend the complaint to include additional misrepresentations of both DONZI and CHESAPEAKE that were revealed during discovery. According to plaintiffs, the subject boat was either a 1996 or 1997 model, yet it was misrepresented by defendants as a 1998 model year boat. Plaintiffs also contend that is was learned during discovery that the engines in the boat, which were misrepresented as being new in 1998, were actually 1997 engines, and that repairs to the boat were necessitated by its extensive use and testing by defendants while in the possession of CHESAPEAKE. Plaintiffs also claim to have discovered that the DONZI 33ZX model was unsafe; that DONZI was aware of this; and that they failed to issue a recall or make notification to the public.
In order to obtain summary judgment, a movant must establish its defense or cause of action sufficiently to warrant a court in directing judgment in its favor as a matter of law ( see, Zuckerman v. City of New York, 49 NY2d 557, 562). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests ( ibid.).
Here, it is the opinion of this Court that the moving defendants have sustained their burden and that plaintiffs have failed to submit sufficient proof to raise material issues of fact regarding, inter alia, the existence of any contract or other type of relationship between themselves and either DONZI or CHESAPEAKE which would support their causes of action for rescission and/or breach of any express or implied warranty.
With respect to the cause of action seeking rescission, the absence of a valid, enforceable contract precludes the relief requested. Moreover, with respect to plaintiffs' claim for breach of implied warranty, it is well settled that in cases where there have been no personal injuries, there must be privity of contract between the parties to support a claim for economic loss resulting from the breach of an implied warranty ( see, Hole v. General Motors Corp., 83 AD2d 715 [3rd Dept. 1981]). Accordingly, plaintiffs' claim that DONZI and CHESAPEAKE breached an implied warranty of merchantability must be dismissed as there is no privity between plaintiffs and either DONZI or CHESAPEAKE. In this regard, even though plaintiffs contend that material issues of fact exist regarding ownership of the boat, the proof submitted to the Court sufficiently establishes a chain of title to the subject boat which places plaintiffs as the remote purchasers and not in privity with either DONZI, the manufacturer, or CHESAPEAKE, the original dealer. While plaintiffs attempt to create a triable issue of fact regarding privity by submitting a copy of a certificate of origin which names CHESAPEAKE as the previous owner of the boat, other proof, such as the EBT testimony of the parties, sufficiently establishes that third-party defendant MS. PULICE did, in fact, purchase the boat from CHESAPEAKE and subsequently traded-in that boat to CAPE ISLAND. While title may not have been properly transferred on paper to MS. PULICE, there is sufficient proof to establish that neither DONZI nor CHESAPEAKE had title to the boat at the time of plaintiffs' purchase.
With respect to plaintiffs' claim regarding breach of express warranty, the only express warranty which appears from the papers submitted to the Court is the Limited Warranty issued by DONZI for, inter alia, repair or replacement of parts, and there is no proof that DONZI breached this warranty. Moreover, this warranty expressly and unambiguously excludes any warranty of merchantability or fitness for use, and therefore, any such claims against DONZI should be dismissed.As for plaintiffs' claim that the foregoing warranty is inapplicable here because it only applies to "new" boats, plaintiffs have, in fact, accepted benefits under the terms of the warranty in the amount of $13,026.98, representing the cost of various repairs, and cannot now be heard to argue that the limited warranty does not apply. With respect to CHESAPEAKE, plaintiffs have failed to submit any proof raising material issues of fact as to whether CHESAPEAKE made any express warranties to plaintiffs, and therefore, any breach of express warranty claims should also be dismissed against it.
With respect to plaintiffs' cause of action sounding in fraud, the proof submitted by plaintiffs is legally insufficient to establish all of the elements of a fraud action against defendants DONZI and CHESAPEAKE.By established precedent, the elements of such an action require that plaintiffs establish (1) that defendants made material representations which were false; (2) that defendants knew the representations were false and made them with the intent to deceive plaintiffs; (3) that plaintiffs justifiably relied on defendants' representations; and (4) that plaintiffs were injured as a result of the defendants' representations ( see, Matter of Garvin, 210 AD2d 332, 333 [2nd Dept. 1994]). At bar, there is no proof that either DONZI or CHESAPEAKE made any representations to plaintiffs regarding the condition of the boat, nor has a triable issue of fact been raised with regard thereto. Instead, it appears from the EBT testimony of plaintiff VERDINO that it was either Eugene Carrell of CAPE ISLAND or third-party defendant JAMES TOTO who made misrepresentations regarding the boat upon which plaintiffs allegedly relied to their detriment. Nor have plaintiffs cited to any authority pursuant to which any these statements can be imputed to either DONZI or to CHESAPEAKE. Therefore, plaintiffs' cause of action for fraud against the moving defendants must also be dismissed.
With respect to plaintiffs' cross motion to amend their complaint, although leave to amend a pleading is liberally granted, where the proposed amendment is patently lacking in merit, leave will be denied as a matter of law ( see, McKiernan v. McKiernan, 207 AD2d 825 [2nd Dept. 1994]). Here, again, plaintiffs have failed to submit any proof in support of their claim that either DONZI and/or CHESAPEAKE made any representations to them regarding the condition of the boat, including its engines, or that DONZI and/or CHESAPEAKE had any direct or indirect dealings with them. In addition, notwithstanding the completion of discovery, plaintiffs have been unable to demonstrate any nexus between their "safety" claims and the damages which they seek. This demonstrable lack of merit requires that their cross motion be denied.
Accordingly, it is
ORDERED that the motion of defendant DONZI MARINE, INC. and the cross motion of defendant CHESAPEAKE ATLANTIC YACHT SALES, LTD. for summary judgment dismissing the complaint and any cross claims against them are granted, and the foregoing causes of action are severed and dismissed; and it is further
ORDERED that plaintiffs' cross motion for leave to amend the complaint is denied; and it is further
ORDERED that the clerk shall enter judgment accordingly.