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Land Power Equipment, LLC v. Amato

March 3, 2009

LAND POWER EQUIPMENT, LLC, PLAINTIFF(S)
v.
MARC AMATO AND AMATO, TRAVIS D/B/A MARC T. LANDSCAPING AND ROMAN BUSINESS CORP., DEFENDANT(S)



The opinion of the court was delivered by: C. Stephen Hackeling, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The plaintiff, Land Power Equipment, LLC, commenced this action seeking to recover $5,539.88 for mechanic services rendered to the defendant's (Roman Business Corp.'s) Daewoo skid steer loader. The defendant interposed an answer containing an affirmative defense that the plaintiff s violation of Sec. 398(d) of the NY S. Vehicle and Traffic Law which nullifies any contractual obligation between the parties. The defendant also advances a negligent/sham repair affirmative defense.

Undisputed Facts

The relevant undisputed facts presented to the Court are that parties had an existing longstanding customer relationship when the defendant brought its 2003 Daewoo skid loader machine in for a repair check of a hydraulic leak and motor knocking on September 19, 2005. The defendant picked up the machine on September 24, 2005, conditioned upon the tender of a $5,539.88 check and stopped payment upon its check the day after tendering same.

Disputed Facts

The defendant contends that all it asked for was a repair estimate, that the repairs were performed without being given an estimate, were without its authorization and alternatively that said repairs were a "sham" as no repairs were performed. The plaintiff asserts that several of its employees gave an oral estimate via the telephone that an engine re-build would cost between $4,500 and $5,000, and that Marc Amato, an employee of the defendant approved same and verbally authorized the repair.

Discussion

Prior to addressing the defendant's VTL Sec. 398-d defense, the Court must adjudicate the parties disparate factual assertions. The defendant's alternative contentions that no employee authorized a repair and that no repair occurred are not credible when confronted by the plaintiff's three witnesses who testified an oral estimate was given and that an authorization to repair was received. The plaintiff's witness who testified that he actually gave the final $4,500-$5,000 estimate is no longer plaintiff's employee, (as such is disinterested in the lawsuit's outcome) and could point to his handwritten notation of the defendant's phone number and person with whom he spoke. This, when coupled with the fact that the defendant actually tendered a check for $5,539.88 without protest, compels the Court to adopt the plaintiff's version of events as credible. It appears from the different handwriting on the defendant's check (Exhibit 2) that the defendant's owner, Gregory Amato, signed a blank instrument and let his son fill in the dollar amount upon pick-up of the equipment. The Court rejects the defendant's claim that the repair was a sham as the record is devoid of any expert testimony or disinterested non conclusory proof regarding same. The record also contains no evidence of a prior negligent repair.

VTL Sec. 398 (d)

In the case at bar, the plaintiff acknowledges its status as a motor vehicle repair shop, (hereafter "MVRS") and the requirement that it comply with N.Y.'s Vehicle & Traffic Law Sec. 398 (d). The defendant's VTL Sec. 398(d) defense is problematic, as this statute provides the following in pertinent part:

1. All work done by a motor vehicle repair shop shall be recorded on an invoice and shall describe all service work done and parts supplied. If any used parts are supplied, the invoice shall clearly state that fact. If any component system installed is composed of new and used parts, such invoice shall clearly state that fact . . . the invoice shall clearly state whether such parts were manufactured as original equipment parts for the vehicle, or were manufactured as non-original replacement parts or are used parts. One copy of the invoice shall be given to the customer . . . every customer and his representative . . . shall have a right to inspect the repaired motor vehicle. Such right of inspection shall also include the right to inspect all replaced parts and components thereof, except warranty or exchange parts. . . The motor vehicle repair shop shall make available to the customer, upon timely written demand, or for such work authorized over the telephone, shall keep until the customer's motor vehicle is retrieved, all replaced parts, components or equipment excepting any parts, components or equipment normally sold on an exchange basis or subject to a warranty. Emphasis added.

2. Upon the request of any customer, a motor vehicle repair shop shall make an estimate in writing of the parts and labor necessary for a specific job and shall not charge for work done or parts supplied in excess of the estimate without the consent of such customer . . . the estimate shall clearly state whether such parts were manufactured as original equipment parts for the vehicle, or were manufactured as non-original replacement parts are used parts. Emphasis added.

Having determined that the plaintiff gave an oral estimate and the defendant authorized same without requesting a written estimate, the Court need not address the issues of plaintiff's compliance with VTL Sec. 398 (d) (2), and limits inquiry to the requirements of Sec. 398 (d) (1). It is clear from a review of the plaintiff's invoice that it is does not contain all of the items described in VTL 398-d (1). Exhibit 1 does little more than quote an overall "engine re-build job" of $5,100 plus $439.88 of sales tax. The required repair detail involving specific services and ...


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