Nassau Suffolk White Trucks, Inc. v. Twin County Transit Mix Corp.

• Decision Date: 03 April 1978
• Citation: Nassau Suffolk White Trucks, Inc. v. Twin County Transit Mix Corp., 403 N.Y.S.2d 322, 62 A.D.2d 982 (N.Y. App. Div. 1978)
• Parties: , 24 UCC Rep.Serv. 84 NASSAU SUFFOLK WHITE TRUCKS, INC., Respondent, v. TWIN COUNTY TRANSIT MIX CORP. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 322

403 N.Y.S.2d 322

62 A.D.2d 982, 24 UCC Rep.Serv. 84

NASSAU SUFFOLK WHITE TRUCKS, INC., Respondent, v. TWIN COUNTY TRANSIT MIX CORP. et al., Appellants.

Supreme Court, Appellate Division, Second Department.

April 3, 1978.

Catterson & Nolan, Port Jefferson (James R. Moffatt, Mineola, on the brief), for appellants.

Milton L. Cobert, New York City, for respondent.

Before HOPKINS, J. P., and MARTUSCELLO, LATHAM and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover for goods sold and delivered, in which defendants counterclaimed, inter alia, to recover damages for breach of implied warranty of fitness for a particular purpose, defendants appeal from a judgment of the Supreme Court, Nassau County, entered April 7, 1977, which is in favor of the plaintiff, after a nonjury trial.

Judgment affirmed, with costs.

Defendant-appellant Twin County Transit Mix Corp. agreed to purchase 10 concrete mixing trucks from plaintiff-respondent a franchised dealer which is in the business of selling and servicing heavy duty trucks. The concrete barrels (the cement mixers) were purchased by Twin County from another company, not a party, which mounted the barrels on the trucks. Within one month after delivery of the first eight trucks, Twin County complained to plaintiff about breakdowns due to broken transfer case shafts and other problems. Plaintiff acknowledged the difficulties and agreed to take care of them to Twin County's satisfaction. When the ninth truck was delivered, a week following the letter, Twin County deducted $4,500 from the agreed purchase price of approximately $39,000. Twin County refused to pay anything for the tenth truck delivered, although it kept the truck and used it along with the others.

This action was brought to recover the price of the tenth truck, the $4,500 withheld on the price of the ninth truck, and approximately $1,500 for tires sold by plaintiff to Twin County, which leases the trucks to defendant J. J. A. Leasing. The corporate defendants are controlled by the individual defendants.

Defendants interposed six counterclaims: breach of implied warranty for a particular purpose (first); breach of implied warranty of merchantability (second); damages for lost time ("down-time") when the trucks were out of service, and for repairs (third); lost profits (fourth); punitive damages for willful breach of warranty (fifth); and loss of reputation (sixth). The damages sought totaled $5,000,000.

Plaintiff's position was essentially three-fold. Twin County's president, Joseph Muratore, had approved every component that was selected for the trucks that were ordered and, indeed, had rejected the first proposal submitted to him by plaintiff and had asked for certain changes, which were incorporated in plaintiff's second proposal. Muratore, according to plaintiff was his own truck expert. Hence, in plaintiff's view, defendants had not relied upon its expertise in selecting the truck components and could not claim the benefit of section 2-315 of the Uniform Commercial Code, the warranty of fitness for a particular purpose. Second, any breakdowns in the trucks were related solely to the mounting of larger concrete barrels on the trucks than the ones defendants had originally said they would use, to wit, the mounting of 13-yard barrels rather than 12-yard barrels. Third, any implied warranties were specifically disclaimed by a clause in the agreement.

Defendants' evidence went to show that Joseph Muratore was not an expert, but simply a customer who had described his needs and relied on plaintiff to select the appropriate truck components. Defendants called a truck expert whose opinion was that the truck breakdown were due to an incompatible combination of a high torque engine with a low ratio rear end; to remedy the defects would require an expenditure of about $15,000 per vehicle. Defendant Jack Muratore produced papers to support the cost of repairs and the time the trucks had been out of service. Surprisingly, the total "down-time", by defendants' own records, was about 218 hours for the 10 trucks for the period from April, 1973 to July, 1975, which is less than 10 hours per year, per truck.

Despite what appeared to be a curtailment by the trial court of proof on the counterclaims because of certain statements made by the court, defendants did, in fact, introduce evidence as...