Arthur Jaffee Associates v. Bilsco Auto Service, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Arthur Jaffee Associates v. Bilsco Auto Service, Inc., 453 N.Y.S.2d 501, 89 A.D.2d 785 (N.Y. App. Div. 1982)
• Decision Date: 09 July 1982
• Parties: , 34 UCC Rep.Serv. 894 ARTHUR JAFFEE ASSOCIATES, Respondent, v. BILSCO AUTO SERVICE, INC., Defendant, and Lancia of America, Division of Fiat Motors of North America, Inc., Appellant.

Page 501

453 N.Y.S.2d 501

89 A.D.2d 785, 34 UCC Rep.Serv. 894

ARTHUR JAFFEE ASSOCIATES, Respondent, v. BILSCO AUTO SERVICE, INC., Defendant and Lancia of America, Division of Fiat Motors of North America Inc., Appellant.

Supreme Court, Appellate Division Fourth Department.

July 9, 1982.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P. C. by Joseph M. Schnitter, Buffalo, for appellant.

Gross, Shuman, Brizdle, Laub & Gilfillan, P. C. by John J. Madden, Buffalo, for respondent.

Before DILLON, P. J., and HANCOCK, CALLAHAN, DOERR and SCHNEPP, JJ.

MEMORANDUM:

Special Term improperly denied Fiat's motion for summary judgment pursuant to CPLR 3212. There is no factual issue regarding the validity of Fiat's disclaimer which requires a trial. Plaintiff purchased a used 1975 Lancia from Bilsco, an authorized dealer. Fiat was not a party to this sale. The express warranty upon which plaintiff relies clearly states that "it is given solely on behalf of the dealer and no one else, and is expressly in lieu of and excludes and supersedes any warranty of merchantability or fitness, and all other warranties and representations, express or implied, from the dealer, the wholesale distributor, the importer or the manufacturer ...." Fiat made no express warranty on behalf of itself (see Uniform Commercial Code, § 2-313), and none was implied by the circumstances in this record (see Uniform Commercial Code §§ 2-103, subd. cl. 2-314, 2-315). The question of whether the disclaimer was "conspicuous" is one for the court's determination (Uniform Commercial Code, § 1-201, subd. ).

The deposition of Marvin Raskin, a dealer employee, relied upon by the plaintiff, may not be used to contradict the express and unambiguous terms of the written warranty (Uniform Commercial Code, § 2-202). It does not constitute evidentiary proof in admissible form; consequently it should not be considered to defeat summary judgment (Pennsylvania...