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Lozowsky v. Planet Automall

June 29, 2009

MICHAEL LOZOWSKY, PLAINTIFF,
v.
PLANET AUTOMALL, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Michael Lozowsky ("plaintiff" or "Lozowsky") claims that he visited defendant Planet Automall, Inc. ("Planet Automall") on several occasions for the purpose of purchasing two motor vehicles in all-cash transactions. According to Lozowsky, after obtaining the second vehicle, he learned for the first time that he had entered into financing agreements for both cars with defendant M&T Bank Corporation ("M&T Bank"). Lozowsky subsequently brought suit against Planet Automall and M&T Bank (collectively, "defendants"), alleging fraud and unjust enrichment in connection with the sale and financing of the two vehicles. See Complaint, ECF Docket Entry ("D.E.") # 1. Defendants asserted a counterclaim against Lozowsky for breach of contract for failing to comply with his payment obligations under the financing agreements. See Answer, D.E. # 5, ¶¶ 4-5.

After waiving a jury trial and consenting to have the case handled by a magistrate judge for all purposes, the parties proceeded to a three-day bench trial before this Court beginning on June 5, 2008 and ending on June 9, 2008. Having considered the pleadings, the evidence, and the parties' arguments, the Court makes the following findings of fact and conclusions of law, and directs that the complaint be dismissed and that judgment be entered in favor of M&T Bank on its counterclaim, in an amount to be determined following further submissions by the parties.

FINDINGS OF FACT

Lozowsky was 51 years old at the time of the disputed transactions. Born in the former Soviet Union, Lozowsky immigrated to the United States in 1990 and is proficient in English. He has been employed for the last several years as a truck driver, having previously graduated from truck-driving school in this country.

On the evening of February 3, 2007, Lozowsky visited Planet Automall in Long Island City, Queens, to examine a used 2003 Infiniti Q45 automobile. While there, Lozowsky dealt with a sales manager named Julio Estrada ("Estrada"). Because the Infiniti was not on the lot that day, Lozowsky, at Estrada's request, left a $500 deposit to have the car prepped and brought to the lot later in the week. See Ex. B.*fn1 Three days later, on February 6, 2007, Lozowsky returned to Planet Automall to take the Infiniti for a test drive. Lozowsky was accompanied by his friend Ted Gill ("Gill"),*fn2 who had been involved with him in connection with three prior used-car purchases.*fn3 Estrada presented Lozowsky with a "Buyer's Order Sheet," which Estrada and Lozowsky both signed. See Ex. G. Pursuant to the "Buyer's Order Sheet," Planet Automall agreed to sell the Infiniti to Lozowsky for $29,995.00. See id. Lozowsky and Estrada then completed a credit application, see Ex. I, after which Estrada escorted Lozowsky, along with the papers, to Planet Automall's finance office.

In the finance office, Lozowsky met with a finance manager named Hector Ugarriza ("Ugarriza"). Ugarriza presented Lozowsky with another contract, which they both signed. See Ex. A. That document reflected an agreed-upon price of $29,995.00 for the car, plus an extended warranty, VIN etching, dealer preparation, tax, title and documentary fees, for a total purchase price of $43,999.01. The document also reflected Lozowsky's aggregate deposit of $21,000 (consisting of his $500 deposit on February 3, 2007, and a $20,500.00 check on February 6, 2007, see Ex. B), yielding a final balance of $22,999.01, to be financed with M&T Bank. Lozowsky and Ugarriza also executed a "Retail Installment Contract," which listed the pertinent terms of the financing as follows: 11.24 percent APR, $7,309.39 finance charge, $22,999.01 amount financed, and $30,308.40 in total payments, divided into 60 payments of $505.14 each. See Ex. C. After the closing documents were finalized,*fn4 copies were provided to Lozowsky, who left with the Infiniti that day.

On February 17, 2007, Lozowsky and Gill returned to Planet Automall to purchase a second used vehicle, this time a Lexus RX 330. Lozowsky once again dealt with Estrada. The two negotiated the price and executed a preliminary contract whereby Planet Automall agreed to sell the Lexus to Lozowsky for $38,000.00. See Ex. A-2. Afterwards, at Lozowsky's request, Estrada accompanied Lozowsky to the finance department, where they formalized their preliminary agreement into a final contract which, in addition to the agreed-upon $38,000.00 price for the car, included a number of extras (i.e., extended warranty, VIN etching, dealer preparation, tax, title and documentary fees), yielding a total purchase price of $56,337.55. See id. (second page). The document also reflected an aggregate down payment by Lozowsky in the amount of $26,650.00, with a balance of $29,687.55, to be financed with M&T Bank. As with the Infiniti transaction, Lozowsky then executed a "Retail Installment Contract," which listed the pertinent terms of the financing as follows: 10.99 percent APR, $9,208.05 finance charge, $29,687.55 amount financed, and $38,895.60 in total payments, divided into 60 payments of $648.26 each. See Ex. C-2. After additional closing documents were executed,*fn5 Estrada gave Lozowsky a "We Owe" confirmation, which stated that Planet Automall owed Lozowsky a shifter knob and an extra key for the Lexus. See Ex. N-2.

At trial, Lozowsky testified (in English) that he and Estrada had agreed to different contract terms. According to Lozowsky, the agreed-upon purchase prices for the Infiniti and Lexus were $21,000.00 and $26,650.00, respectively. He claimed that his cash payments were not merely down payments, but instead were payments in full. Accordingly, Lozowsky contended that he never agreed to any financing. To support his contention, Lozowsky pointed to a "We Owe" document from the Infiniti transaction on which Estrada had written "Nothing." See Ex. N. Lozowsky claimed that Estrada handed him this document with the understanding that Lozowsky owed no further payments. Lozowsky also asserted that he never agreed to purchase warranties or VIN-etching for the vehicles. Although he acknowledged his signatures and initials on the documents evidencing all the terms of the transactions and financing, Lozowsky asserted that the documents had been blank when Estrada handed them to him, and that he did not read the documents closely, nor did he ask Estrada for any additional time to review them.*fn6

Lozowsky's assertions are simply not credible. First, the Court found Lozowsky to be an evasive witness, particularly on cross-examination.*fn7 Second, on each of the two final contracts, which listed the total prices as being $43,999.01 and $56,337.55 and bore Lozowsky's signature, Lozowsky also separately placed his initials next to certain individual amounts, including the warranty and etching charges and, on the Lexus contract, the amount to be financed. See Exs. A & A-2 (second page). The Court declines to credit Lozowsky's claim that he initialed next to items and signed blank financing documents with no intention of purchasing those items or entering into any financing arrangement.*fn8 Third, the only reasonable reading of the "We Owe" documents is that the obligations listed thereon relate to parts to be installed and/or provided, and run from the dealership to the customer and not the other way around. For instance, these form documents contain language stating, "I hereby accept this WE-OWE with the understanding . . . that I must make an ADVANCE APPOINTMENT WITH THE SERVICE DEPARTMENT before the above work can be performed." See Exs. N & N-2 (emphasis in original). Fourth, Lozowsky's claim that he did not receive the loan repayment coupon book from M&T Bank until February 20, 2007, after he purchased the second car on February 17, 2007, is belied by a stipulation that the coupon book was mailed to him on February 12, 2007. See Joint Pretrial Order, D.E. #25, at 2. Finally, although the vehicles were allegedly intended for export, Lozowsky made no arrangements to have them flat-bedded and transported to port for shipment overseas, which would have obviated the need for the dealer to charge Lozowsky for the applicable state sales tax.*fn9

CONCLUSIONS OF LAW

I. Choice of Law

A federal district court sitting in diversity applies the substantive law of the forum state, including that state's choice-of-law rules. See Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1538-39 (2d Cir. 1997) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941)). New York follows the "center of gravity" or "grouping of contacts" approach to resolve choice-of-law issues in cases involving contractual disputes. See id. at 1539 (citation omitted). Under that approach, in order to determine which state's law applies, courts must weigh factors such as (1) the place of negotiation, contracting, and performance; (2) the location of the contract's subject matter; and (3) the domicile, place of incorporation, and place of business of the contracting parties. See id. (citation omitted). Where a contract contains a choice-of-law clause, however, and "a court finds that . . . [the] clause is valid, the law selected in the clause dictates how the contract's provisions should be interpreted[.]" Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 332 (2d Cir. 2005).

Here, both the purchase and financing agreements signed by the parties contain choice-of-law clauses dictating that New York law shall govern disputes arising from the agreements. See Ex. A, Additional Terms & Conditions, ¶ 10; Ex. C, Additional Terms & Conditions, ¶ 26; Ex. A-2 (second page), Additional Terms & Conditions, ¶ 10; Ex. C-2, Additional Terms & Conditions, ¶ 26. In any event, because the agreements were negotiated and signed in New York, defendants are both New York corporations, and defendants performed their ...


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