90 A.D.2d 860 | N.Y. App. Div. | 1982
Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered November 24, 1981 in Albany County, which granted, in part, defendant’s motion for summary judgment. Having ordered two new pieces of fire-fighting equipment for fall delivery, defendant board determined that they had no further need for a 1961 pumper truck and in late summer advertised for its sale by placing one advertisement in the Albany Times Union newspaper and another in The Volunteer Fireman magazine. The “advertisement for bids” in the newspaper contained the phrase, “as is”, whereas the one in the magazine did not. Representatives of plaintiff’s department saw the magazine advertisement but contend they did not see the one appearing in the newspaper. There was a meeting of representatives of both parties and according to plaintiff certain statements concerning the pumper were made and a test drive and demonstration of the pumper followed. Later a group of plaintiff’s representatives conducted a visual inspection of the vehicle. Subsequently, plaintiff submitted a bid in the sum of $12,550.60. On October 12, 1977, after the reading of the “as is” advertisement, which plaintiff’s representatives assert they did not see, the bids were opened and plaintiff was the high bidder. After certification following the mandatory referendum (Town Law, § 176, subd 23) and payment of the balance due according to the bid terms, plaintiff took possession of the pumper and began the homeward journey, operating the pumper, according to their representatives, precisely as they were instructed by defendant. However, the journey ended abruptly when after a few miles the pumper overheated and then completely broke down. It has not been operational since. As a consequence, plaintiff commenced this action alleging four separate causes: (1) for rescission of the contract of sale based upon fraudulent misrepresentation or mutual mistake; (2) for damages based on breach of warranty; (3) for rescission of the contract as unconscionable pursuant to section 2-302 of the Uniform Commercial Code; and (4) for damages for negligent maintenance of the pumper prior to sale. On defendant’s motion for summary judgment, Special Term dismissed the third and fourth causes of action, but found that questions of fact precluded the granting of the motion as to the first and second causes of action. We agree. Defendant contends that the first cause of action should have been dismissed because plaintiff failed to establish three of five essential elements (see Lanzi v Brooks, 54 AD2d 1057, 1058, affd 43 NY2d 778), i.e., scienter, that the representations were false, and reasonable reliance on the alleged statements. While in an action for damages based upon fraud scienter must be shown, in an action for rescission proof of scienter need not be shown (Seneca Wire & Mfg. Co. v Leach & Co., 247 NY 1, 8; Albany Motor Inn & Rest.