Curtis v. Fordham Chrysler Plymouth, Inc.
| Decision Date | 13 February 1975 |
| Citation | 81 Misc.2d 566,364 N.Y.S.2d 767 |
| Parties | , 16 UCC Rep.Serv. 659 James CURTIS, Plaintiff, v. FORDHAM CHRYSLER PLYMOUTH, INC., and Chrysler Corp., Defendants. |
| Court | New York City Court |
Fusco & Fusco, New York City by Matthew Broughton, for plaintiff.
Cunningham & Kaming by Bruce Engel, New York City, for defendant Fordham Chrysler.
Kelley, Drye & Warren by Peter Schmerge, New York City, for defendant Chrysler Corp.
This is an action against a new car dealer and the manufacturer to recover the purchase price of a new automobile.
In August of 1972 plaintiff purchased a 1973 Chrysler Imperial automobile from defendant, Fordham Chrysler Plymouth, Inc. (hereinafter sometimes called 'dealer'), for the sum of $7,694.18 (including finance charges the bill was $7694.18). The car was delivered on October 18, 1972. Together with the car plaintiff received an express warranty from defendant, Chrysler Corp., that it would replace or repair any part of the vehicle found defective in material or workmanship for a period of 12 months or 12,000 miles. The warranty expressly stated that it was in lieu of any other warranties or conditions, including the implied warranty of merchantability.
Plaintiff contends that on the very next day the car would not start and after trying five or six times finally started it only to find that the motor cut out. After a week he went to the dealer who suggested he wait until 300--500 miles. He stated that the car still would not could not start the car and the motor went to the dealer who suggested would not turn over. He therefore purchased a new battery. He still had trouble starting after that and about two days later went to the dealer. Again on February 5, 1973 he went to the dealer and told him the car was hard starting. It is conceded that a new electronic control was put in at that time. Again on February 20, 1973 he complained of hard starting. On April 2nd, 1973 his carburator was overhauled by the dealer. During this period he had another new battery placed in the car and had his car towed several times to the dealer.
On April 11, 1973 this action was instituted. On May 7, 1973 the dealer replaced plaintiff's carburator. Finally, on July 12, 1973 plaintiff again took the car to the dealer and told him it was hard starting and left the car with the dealer.
On each of the above occasions the dealer agreed that the car was hard starting when the plaintiff brought it in, but stated that it was running well after the repairs, including after July 12, 1973. Several times, in addition to the repairs, the battery had to be charged and once replaced in order to get the car to run.
Sometime between July 12, 1973 and August 14, 1973 plaintiff removed the license plates from the car which was on the dealer's lot and on August 18, 1973 surrendered them. No demand for return of the purchase price was ever made except as contained in the complaint.
The complaint alleges a cause of action against defendant Chrysler Corp. in negligence in the amount of $7,963.94 in the manufacture, sale and distribution of a 1973 Chrysler Imperial automobile in that this was done negligently, carelessly and said car was in a dangerous, defective and unsafe condition.
The court finds that plaintiff has not sustained his burden of proof by a fair preponderance of the credible evidence that defendant, Chrysler Corp. was negligent.
Assuming plaintiff has attempted to prove a cause of action for breach of the warranty of merchantability against defendant, Chrysler Corp., there are several difficulties. First, the express warranty by Chrysler clearly negates the implied warranty, as permitted by the Uniform Commercial Code section 2--316. Secondly, Chrysler did not sell the car to plaintiff and it is difficult to see how an action for the purchase price would lie against Chrysler, since the underlying cause of action is based upon recision. Carlson v. Shephard Pontiac, Inc., 63 Misc.2d 994, 314 N.Y.S.2d 77 (Sup.Ct., Fulton Cty., 1970). Even assuming, that the negation of the warranty might be unconscionable under U.C.C. 2--302 (...
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..."tendered possession of the [Vehicle] to the seller." See Kolle, 2006 WL 1085067, at *8 (citing Curtis v. Fordham Chrysler Plymouth, Inc., 81 Misc.2d 566, 568, 364 N.Y.S.2d 767 (Civ. Ct. Bronx County 1975)). "Revocation of acceptance is untimely and unreasonable when a buyer continues to us......
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...that Rapol failed as a matter of law to prove its substantive right to the relief it sought. See, e.g., Curtis v. Fordham Chrysler Plymouth, Inc., 81 Misc.2d 566, 364 N.Y. S.2d 767 As to the second element, we are left without vital or convincing proof sufficient to sustain the assertion th......
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