The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.
Presently before the court is defendant Toyoda Machinery U.S.A., Inc.'s ("Toyoda") motion for partial summary judgment as to three of the four causes of action brought in the complaint. Toyoda seeks to dismiss plaintiff Patell Industrial Machine Co., Inc.'s ("Patell") causes of action alleging breach of warranty, fraudulent inducement, and negligent misrepresentation.
This action arises out of the sale and subsequent return of a machine tool commonly known as a lathe. In April 1993, Patell's representatives contacted a local machine supply company to locate and purchase a lathe. The local machine supply company determined that defendant Toyoda had a lathe that might meet Patell's needs and put the parties in contact. During a telephone conference between the parties and a representative of the local supply company, the parties discussed the lathe that Toyoda had available. Toyoda allegedly told Patell that the lathe had only 60 hours of cutting time and had only been actually used for approximately 200 hours.
Toyoda offered to fly Patell's representatives to Toyoda's offices to inspect the lathe prior to their purchase. Toyoda contends that it offered to pay for the trip unconditionally, and Patell contends that Toyoda offered to pay only if Patell ultimately purchased the lathe. In any event, Patell declined the trip and negotiated a 30-day return privilege, which allowed it to return the lathe at its own shipping cost within 30 days of installation if it was dissatisfied with the machine.
After the contract was entered into but before the machine was shipped, Toyoda represented to plaintiff that the machine had a bar capacity of 2.5". In fact, the machine had a bar capacity of 2.47".
The machine was shipped to Patell on or about May 14, 1993. Patell allegedly experienced installation and operational problems (including that the bar capacity was never increased to 2.5") and returned the lathe on or about June 21, 1993 in accord with its return privilege. Shortly thereafter Toyoda refunded Patell's full deposit. Patell brought the current action claiming breach of warranty, fraudulent inducement, breach of contract and negligent misrepresentation and seeking compensatory damages including costs allegedly incurred in setting up its floor space to accommodate the lathe and in making alternate arrangements to complete its orders.
I. STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate only when the moving party shows that no genuine issue of material fact exists as a matter of law. See, e.g., Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An unresolved factual issue is one that a reasonable fact-finder could decide in favor of either party. Anderson, 477 U.S. at 250.
Defendant moved to dismiss the first cause of action in the complaint alleging breach of warranty because such a claim is only valid if the goods are accepted. The plaintiff does not dispute this contention and consents to withdraw this cause of action. Therefore, ...