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Maria Semel v. Galaxy Nyack

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


March 17, 2011

MARIA SEMEL,
RESPONDENT,
v.
GALAXY NYACK, INC. DOING BUSINESS AS ROCKLAND TOYOTA,
APPELLANT.

Appeal from a decision of the Justice Court of the Town of Orangetown, Rockland County (Paul B. Phinney, III, J.), entered December 26, 2008, deemed from an amended judgment of the same court entered March 16, 2009 (see CPLR 5512 [a]).

Semel v Galaxy Nyack, Inc.

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The amended judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,084.33.

ORDERED that the amended judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover damages from defendant, a car dealership, for, among other things, defendant's alleged "fraud and deceit" in inducing her to enter into a lease for a 2008 vehicle.

According to the trial testimony, plaintiff and her husband were under the impression, based on the representations of defendant's employees, that they would be able to surrender their 2005 vehicle to defendant, thereby allowing them to be free of its monthly payments and enabling them to afford the monthly payments due on a proposed lease, through defendant, of a 2008 vehicle. They testified that they were repeatedly told by defendant's employees that this would not be a problem. After plaintiff had entered into the lease for the 2008 vehicle and surrendered possession of the 2005 vehicle to defendant, defendant determined that it could not accept the vehicle or make the monthly payments due thereon. Plaintiff testified that she would not have entered into the lease had she not relied upon the misrepresentations of defendant's employees. The defense witnesses testified that no such misrepresentations were made, and that plaintiff signed a lease which contained a general merger clause. After a non-jury trial, the Justice Court awarded plaintiff the principal sum of $2,084.33, concluding that defendant had in fact misrepresented the terms of the lease agreement.

We note that where fraud is alleged, disclaimer and merger clauses contained in a written contract are ineffective to bar the consideration of parol evidence of misrepresentations by a contracting party unless the clauses refer to the particular subject matter as to which the representations are alleged with sufficient specificity to put the other contracting party on notice of the clauses' intended effect (see Culinary Connection Holdings, Inc. v Culinary Connection of Great Neck, Inc., 1 AD3d 558, 559 [2003]; see also Danann Realty Corp. v Harris, 5 NY2d 317 [1959]). Accordingly, it was not improper for the Justice Court to consider plaintiff's testimony regarding the oral statements made to her by defendant's employees. This is especially appropriate here where plaintiff surrendered possession of her 2005 vehicle to defendant, which initially accepted it but subsequently informed plaintiff that it could not do so.

The decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). Upon a review of the record, we find that the amended judgment provided the parties with substantial justice according to the rules and principles of substantive law (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126). Accordingly, the amended judgment is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: March 17, 2011

20110317

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