713 NYS2d 808 | N.Y. Sup. Ct. | 2000
OPINION OF THE COURT
In June 1999, plaintiff, Mark A. DiCintio, leased a 1999 Jeep Grand Laredo, manufactured by defendant DaimlerChrysler Corporation (Chrysler), from defendant Adzam Auto Sales, Inc. (Adzam) for a monthly payment of nearly $400. Plaintiff received several written warranties, including a three-year or 36,000-mile warranty. Title to the vehicle did not pass to plaintiff. At the conclusion of the three-year lease term,
Plaintiff commenced the instant action against defendants alleging that the car is defective and cannot be utilized for its intended use.
Plaintiff alleges five causes of action: (1) breach of written warranty against Chrysler under the Magnuson-Moss Warranty Act (the Warranty Act), 15 USC § 2301 et seq.; (2) breach of implied warranty against defendants under the Warranty Act and UCC 2-314 and 2-318; (3) revocation of acceptance against defendants under the Warranty Act; (4) costs, fees, and expenses against defendants under the Warranty Act; and (5) improper delivery against defendants under UCC 2-601.
In their instant preanswer dismissal motion, defendants contend that the first cause of action against Chrysler based on violations of the Warranty Act should be dismissed because it does not apply to the instant auto lease given that the lease contains an option to purchase the car at the conclusion of the lease term.
Plaintiff, on the other hand, argues that he is an individual to whom a consumer product was transferred, and, as statutes with a remedial purpose are to be construed broadly, the Warranty Act applies to this action. In any event, plaintiff contends that a lease with an option to purchase, as here, is covered by the Warranty Act because it is analogous to a sale.
Against this background, this court concludes that the Warranty Act is applicable to plaintiff even though the lease at issue provides him with the option to purchase the vehicle at the end of the lease period. It would make little sense to conclude that plaintiff is not entitled to the Warranty Act’s benefits during the three-year lease term, but that he would be protected by the Warranty Act if he chose to purchase the car upon the
Accordingly, defendants’ motion seeking to dismiss the first cause of action against Chrysler is denied.
That branch of defendants’ motion to dismiss the second cause of action against defendants for breach of implied warranty under the Warranty Act is granted as to Chrysler and denied as to Adzam.
For the same reasons set forth above, plaintiff’s third cause of action against Chrysler for rejecting his revocation of the lease is dismissed. This cause of action is also dismissed as against Adzam because plaintiff has failed to allege that he notified Adzam of his intent to revoke his prior acceptance of the car (see, UCC 2-608 [2]). Further, given that Adzam is not an agent of Chrysler, plaintiff’s revocation notification to Chrysler cannot be imputed to Adzam.
The court denies defendants’ motion to dismiss the fourth cause of action given that the Warranty Act permits a prevailing party to recover costs and expenses, including attorneys’ fees (see, 15 USC § 2310 [d] [2]).
In his fifth cause of action, plaintiff alleges that the car was delivered in violation of UCC 2-60Í (a) given that it failed to conform to the contract for a new vehicle. In moving to dismiss this claim, defendants argue that there is no privity of contract between plaintiff and Chrysler, that plaintiff failed to notify Adzam properly, and that plaintiff’s acceptance precludes any rejection. Plaintiff, on the other hand, counters that a consumer may maintain a cause of action for improper delivery
Pursuant to UCC 2-711 and 2-713, the only remedies available for improper delivery are against the seller (see, Curtis v Fordham Chrysler Plymouth, 81 Misc 2d 566, 568 [Civ Ct, Bronx County 1975] [“Chrysler did not sell the car to plaintiff and it is difficult to see how an action for the purchase price would lie against Chrysler, since the underlying cause of action is based upon rescission”]). As such, this cause of action cannot be asserted against Chrysler.
As to Adzam, rejection of goods “is ineffective unless the buyer seasonably notifies the seller” (see, UCC 2-602 [1]). Absent from the complaint is any allegation that plaintiff notified Adzam of his rejection of the car. In fact, plaintiff states in his affidavit that he had a discussion with an individual whom he believes was Adzam’s general manager, and that he informed such individual “that I wished to either terminate the Lease or have another equivalent vehicle substituted into the Lease” (DiCintio opposition affidavit H 23).
Accordingly, defendants’ motion to dismiss the fifth cause of action is granted, and it is dismissed.
Ordered that defendants’ motion to dismiss the complaint is granted to the extent of dismissing the second cause of action as against Chrysler, the third and fifth causes of action as against both defendants, and is otherwise denied; and it is further ordered that defendants are directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry.
. Chrysler rejected plaintiffs letter, dated October 28, 1999, wherein he revoked his acceptance of the car and the lease.
. The Warranty Act provides that a consumer who is damaged by a warrantor’s failure to comply with an implied or written warranty may recover damages and equitable relief (see, 15 USC § 2301 [3] [“The term ‘consumer’ means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract)”]).
. Plaintiffs reliance on Beyer v DaimlerChrysler Corp. (Sup Ct, Suffolk County, Apr. 10, 2000) to support his argument that auto leases with an option to purchase, as here, are covered by the Warranty Act is misplaced. Contrary to plaintiffs reading, the court in Beyer merely noted the split in authority on the issue and did not directly resolve the issue in denying the dismissal motion.
. Adzam argues that this claim should be dismissed as against it because the Warranty Act is inapplicable to this action. The argument is unavailing. As noted earlier, this court found to the contrary.