93 A.D.2d 744 | N.Y. App. Div. | 1983
— Order, Supreme Court, New York County (Shainswit, J.), entered February 9, 1982, granting defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, without costs, to the extent of denying the cross motion for summary judgment dismissing the complaint as against Steven Kessler and Steven Kessler Motor Cars, Inc., reinstating the complaint only as against those defendants, except so much thereof as seeks punitive damages, and otherwise affirmed. We find the record to raise sufficient triable issues so as to the preclude summary judgment in favor of Steven Kessler and Steven Kessler Motor Cars, Inc. The affidavits and supporting proof submitted before Special Term raise in issue whether there were fraudulent misrepresentations in connection with plaintiff’s lease of a 1978 TVR Roadster. After negotiations between plaintiff and Kessler, and by arrangement, the vehicle was sold by Kessler to Manhattan Leasing Systems, which, in turn, leased it to plaintiff. The lease agreement with Manhattan Leasing specifically excludes any express or implied warranties, either of merchantability or fitness for use, explicitly providing that the vehicle was leased “as is”. The use of such limiting language amounts to an exclusion of all implied warranties. (Uniform Commercial Code, § 2-316; see 51 NY Jur, Sales, § 181.) Therefore, there is no basis for liability as against Manhattan Leasing in the absence of any representations by it. However, there are factual issues, relating to the claims by plaintiff that there were material misrepresentations by Kessler and by Kessler Motor Cars that cannot be resolved solely upon the
