112 Misc. 2d 768 | N.Y. App. Term. | 1981
OPINION OF THE COURT
Memorandum.
Judgment reversed, without costs, and complaint dismissed.
Plaintiff instituted this action for the return of a deposit in the sum of $1,000 placed on a contract to purchase a new car from defendant. Plaintiff initially tendered a $50 refundable deposit to defendant. One week later plaintiff tendered an additional deposit of $950. Approximately two weeks later plaintiff notified defendant that he intended to cancel the contract. The contract contained a liquidated damage clause which provided for damages in the sum of 20% of the purchase price against which the deposit was to be credited. Section 2-708 of the Uniform Commercial Code, as interpreted by the Court of Appeals in Neri v Retail Mar. Corp. (30 NY2d 393), indicates that retail dealers are now entitled to recover their loss of profit. The reference to an “inexhaustible supply” merely highlights
Di Paolo, J. (dissenting). While the seller’s damages under section 2-708 of the Uniform Commercial Code are his loss of profits less incidental expenses, unlike the situation in Neri v Retail Mar. Corp. (30 NY2d 393, 399-400), the seller failed to establish that he had “an inexhaustible supply of cars” and would necessarily have made two sales instead of one. For these reasons, I recommend affirmance rather than reversal.
Farley, P. J., and O’Gorman, J., concur in memorandum; Di Paola, J., dissents in separate memorandum.