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Pedro Infante v. Nemet Truck & Auto Center

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


March 7, 2011

PEDRO INFANTE,
PLAINTIFF-
v.
NEMET TRUCK & AUTO CENTER, DEFENDANT-APPELLANT.

Per curiam.

Infante v Nemet Truck & Auto Ctr.

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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2011

PRESENT: Shulman, J.P., Hunter, Jr., J.

Defendant appeals from an amended judgment of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered on or about March 3, 2010, after a non-jury trial, in favor of plaintiff and awarding him damages in the principal sum of $5,000.

Amended judgment (Fernando Tapia, J.), entered on or about March 3, 2010, reversed, judgment vacated and complaint dismissed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

In this plenary action for "breach of contract or warranty" and "failure to provide proper services" against defendant automobile dealer, plaintiff testified at trial that he entered into a retail installment contract to purchase and finance a used automobile from defendant, then unsuccessfully attempted to return the vehicle and obtain a refund of his $5,000 down payment. After trial, Civil Court awarded plaintiff the principal sum of $5,000 upon finding that the contract was unconscionable and that plaintiff had relied upon material misrepresentations concerning the price of the vehicle. The record, however, does not establish liability on either theory. To the contrary, plaintiff actively negotiated the purchase of the automobile, rejecting three proposed contracts and ultimately reducing the contract price by nearly $8,000. He failed to show that the contract he signed was unreasonably favorable to defendant, or lack of reasonable choice that would render the contract unconscionable (see Gillman v Chase Manhattan Bank, NA, 73 NY2d 1 [1988]). There was also no showing of fraud based upon any material misrepresentation. Plaintiff is presumed to have read the documents he signed, and may not claim that he relied on alleged contrary representations from defendant (see Lewin Chevrolet-Geo-Oldsmobile Inc. v Bender, 225 AD2d 916 [1996]; see also Haggerty v Brady, 71 AD3d 1281 [2010]).

Accordingly, upon review of the record, we find that plaintiff-buyer has established no basis for recovery against defendant. The judgment must, therefore, be reversed, and the complaint dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: March 07, 2011

20110307

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