Hayduk v. Mahoney Motor Sales, Inc.

• Decision Date: 24 December 1962
• Citation: 18 A.D.2d 703,236 N.Y.S.2d 362
• Parties: Robert G. HAYDUK, Respondent, v. MAHONEY MOTOR SALES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 362

236 N.Y.S.2d 362

18 A.D.2d 703

Robert G. HAYDUK, Respondent, v. MAHONEY MOTOR SALES, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 24, 1962.

Anthony J. DeCicco, New York City, for appellant; Wm. F. McNulty, New York City, of counsel.

Farley, Jutkowitz & LoCascio, Yonkers, for respondent; J. D. Jutkowitz, Yonkers, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action (a) to recover the price paid by plaintiff for an automobile purchased by him from the defendant, a dealer (first cause of action); and (b) to recover damages for loss of the use of the automobile (second cause of action), on the ground that plaintiff had elected to rescind the sale by reason of defendant's alleged breach of warranty that the automobile was fit for the purpose for which it was required and that it was of merchantable quality (Personal Property Law, §§ 96, 150), defendant appeals from a judgment of the City Court of Yonkers, entered June 12, 1962 upon an order of said court, dated the same day, which granted plaintiff's motion for summary judgment with respect to the first cause of action only.

Judgment reversed with ten dollars costs and disbursements; order, insofar as it relates to the first cause of action, vacated; and plaintiff's motion for summary judgment with respect to such cause of action denied.

In our opinion, since the reports by the police department, by the firm of brake mechanics, and by the manufacturer of the automobile were unsworn, they should not have been considered in support of the motion (Weber v. Richter, 269 App.Div. 961, 58 N.Y.S.2d 147, motion to amend order den. 269 App.Div. 1037, 59 N.Y.S.2d 276, 1v. app. den. 270 App.Div. 1046, 63 N.Y.S.2d 838; Long Island Trust Co. v. Merz, 20 Misc.2d 342, 187 N.Y.S.2d 419; Tripp, A Guide to Motion Practice, rev. ed., § 95). Moreover, while an admission may be considered in support of a motion for summary judgment, the automobile manufacturer's report was not an admission by defendant (see 20 Am.Jur., Evidence §§ 344, 589, 590, 593; cf. Funk v. Kaiser-Frazer Sales Corp., 15 A.D.2d 548, 222 N.Y.S.2d 711).

Under the circumstances, the record presents issues of fact which must be resolved after a plenary trial.