657 N.Y.S.2d 43 | N.Y. App. Div. | 1997
Order, Supreme Court, New York County (Walter Schackman, J.), entered January 11, 1996, which, inter alia, denied defendant’s motion for summary judgment dismissing plaintiff’s causes of action for breach of express and implied warranties, and order, same court and Justice, entered August 6, 1996, which, upon reargument, adhered to the prior order, unanimously affirmed, with costs.
Plaintiffs, purchasers or lessees of automobiles manufactured by defendant, allege that they sustained economic loss by reason of various defects in the automobiles, and, as the matter now stands, are left with breach of express warranty and breach of the implied warranty of merchantability as possible theories of recovery. Defendant correctly argues that there can be no implied warranty absent privity between itself and plaintiffs (see, Jaffee Assocs. v Bilsco Auto Serv., 58 NY2d 993), but, as motion court explained, such privity would exist if the dealerships with which plaintiffs dealt were defendant’s sales or leasing agents, and disclosure is needed with respect to the latter possibility. Concerning the express warranty claim, we reject defendant’s argument, at this juncture, that it should be granted summary judgment as to those particular alleged defects that plaintiffs made no attempt to justify either in their discovery responses or opposition to the instant motion (see, CPLR 3212 [g]). We have considered defendant’s remaining arguments and find them to be without merit. Concur— Sullivan, J. P., Milonas, Wallach and Mazzarelli, JJ.