Appeal from an order of the Supreme Court (Viscardi, J.), entered August 4, 1998 in Washington County, which, upon reargument, denied plaintiffs motion for summary judgment.
In December 1991, plaintiff purchased a new motor home from defendant for a sum in excess of $100,000. In July 1993, after having the vehicle weighed, plaintiff wrote a letter to defendant stating that it was overweight, exceeded Federal motor vehicle safety standards and was unsafe to operate under normal usage.
During the jury trial, Supreme Court directed that the issues of liability and damages be bifurcated; the court dismissed all causes of action except the breach of contract claim, and submitted the issue of liability on that claim alone to the jury.
Prior to the second portion of the trial on the issue of damages, plaintiff moved for summary judgment contending that, in view of the jury’s verdict that the motor home was dangerous or defective, as a matter of law he is entitled to the return of his purchase price with interest. Plaintiff submitted that there were no questions of fact to be resolved regarding the measure of damages or the amount of damages. Plaintiff alleged in his affidavit in support of the motion and argued in his memorandum of law that he had timely revoked acceptance of the motor home after learning it was overweight, offered to return it and demanded the return of the purchase price. Defendant cross-moved for summary judgment on damages, and opposed plaintiff’s motion, contending that the issue of defendant’s liability went to the jury solely on plaintiffs breach of contract cause, of action for which plaintiff sought money damages in the amount of the purchase price. Defendant further argued that plaintiff never pleaded or proved that he repudiated the contract or revoked his acceptance of the vehicle, instead apparently seeking by his complaint to simultaneously retain the vehicle which he used for many years and receive reimbursement of its full purchase price with interest. Defendant also argued that plaintiff had not proved damages at the liability phase of the trial.
Supreme Court initially denied defendant’s cross motion and granted plaintiff summary judgment on damages, awarding the full purchase price of the motor home plus interest and directing its return to defendant upon this repayment. The court reasoned that, in view of the jury’s finding as instructed on plaintiffs breach of contract claim that the vehicle was dangerous and defective, and because plaintiff made clear that he did not want it, “special circumstances” existed to warrant departure from the measure of damages under UCC 2-714 (2); the court concluded that the proper measure of damages was the return of plaintiffs purchase price plus interest, citing Murphy v Mallard Coach Co. (
Defendant thereafter moved to reargue, contending that recission of the contract and return of the vehicle is an equitable remedy which plaintiff did not plead or seek in his complaint, which sought only money damages; that plaintiff never proved damages on his breach of contract claim at the liability phase of the bifurcated jury trial; and that there was no basis to allow plaintiff to enjoy the benefit and use of the vehicle for many years at defendant’s expense. Plaintiff opposed defendant’s re-argument motion.
We affirm. It is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision (see, Grassel v Albany Med. Ctr. Hosp.,
Moreover, plaintiff neither pleaded nor proved at trial that he revoked acceptance of the contract for the sale of the vehicle;
Thus, plaintiff did not establish entitlement, as a matter of law, to repayment of the purchase price (see, UCC 2-711), and must offer proof at the trial on damages as to the loss suffered as a consequence of defendant’s breach of contract, including incidental and consequential damages, as Supreme Court concluded upon reargument (see, UCC 2-714 [1]; 2-715]). Under these circumstances, the amount of damages was correctly determined to be a question of fact for the jury (see, Levine v East Ramapo Cent. School Dist.,
Cardona, P. J., Mikoll, Crew III and Graffeo, JJ., concur. Ordered that the order is affirmed, with costs.
Notes
. In August 1993, plaintiff sent a letter, copied to defendant, to the manufacturer asserting that defendant had refused to make repairs to correct the vehicle’s weight problem. Plaintiff invoked his right under the New York new car Lemon Law, stating that the manufacturer would be required to accept return of the vehicle and issue plaintiff a full refund of the purchase price unless repairs were timely commenced.
. Prior to the trial, defendant moved for summary judgment based upon an arbitrator’s decision in a Lemon Law proceeding instituted by plaintiff against the vehicle’s manufacturer that any weight problem was plaintiff’s responsibility. Supreme Court denied that motion based upon its conclusion that the claims in the two actions were not the same.
. It appears that plaintiff first asserted this claim in moving for summary judgment on damages following the jury verdict on liability. Notably, plaintiff never moved to amend his complaint.