APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
December 1, 2010
NEW COUNTRY MOTORS,
Pressley v. New Country Motors
Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 1, 2010
PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ 570450/10.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about June 29, 2009, after a non-jury trial, awarding plaintiff the principal sum of $7,260.00.
Judgment (Raul Cruz, J.), entered on or about June 29, 2009, modified to (1) reduce the principal sum of the award to plaintiff from $7,260.00 to $6,800.00, and (2) direct plaintiff to return title to the subject vehicle to defendant; as modified, judgment affirmed, without costs.
With respect to the issue of liability, the record establishes that the trial court applied the appropriate rules and principles of substantive law and accomplished "substantial justice" in awarding plaintiff a recovery in this small claims action (see CCA 1804, 1807; see also Williams v Roper, 269 AD2d 125 , lv dismissed 95 NY2d 898 ). The trial evidence, fairly interpreted, supports the conclusion that defendant breached the express warranty contained within the parties' agreement and bill of sale, which was signed in connection with plaintiff's purchase of a used motor vehicle from defendant, wherein defendant had certified that, at the time of sale, the subject vehicle was "in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway." The evidence also supports the conclusion that defendant breached the implied warranty of merchantability (see Gordon v Ford Motor Co., 260 AD2d 164 ; see also UCC § 2-314, [c]).
Regarding the damages awarded to plaintiff, we reduce the principal amount of the award from $7,260.00 to $6,800.00, the amount which plaintiff is permitted to recover based on the ad damnum clause in her endorsed complaint. Additionally, since plaintiff was awarded the full purchase price of the vehicle, we direct that she return title of the vehicle to defendant.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur Decision Date: December 01, 2010
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