| Nigro v Lee |
| 2009 NY Slip Op 05244 [63 AD3d 1490] |
| June 25, 2009 |
| Appellate Division, Third Department |
| Joseph Nigro, Appellant, v Alice Aizhen Lee et al.,Respondents. |
—[*1] Richard P. Jacobson, Albany, for respondents.
Peters, J.P. Appeal from an order of the Supreme Court (Devine, J.), entered April 1, 2008 inAlbany County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint.
In 2006, defendant Maxwell Lee initiated an eBay auction sale of a 1995 Mercedes Benzowned by his mother, defendant Alice Aizhen Lee. Defendants' eBay advertisement describedthe car as "gorgeous," with three minor blemishes in the form of a missing master key, CDcartridge and spare tire, represented that the seller was the sole owner of the vehicle andcautioned that "[t]he vehicle is [being] sold as it is and conditions are disclosed to the best of myknowledge." Plaintiff, a New York resident, purchased the vehicle which was delivered to himfrom Nevada, where defendants reside, on July 30, 2006. Upon its arrival, plaintiff beganexperiencing difficulties with the automobile. He had an inspection performed, which revealedthat the car had been damaged in an accident and had been painted, the upholstery was stained,the undercoating was worn out and parts were rusted, and that body work would cost $1,741.66.He also received estimates for electrical and sensory repairs exceeding $7,495, repairs to thethrottle that exceeded $3,931 and a new catalytic converter costing approximately $1,100.Plaintiff communicated his dissatisfaction to defendants and, although they refunded a portion ofthe purchase price, plaintiff commenced this action to rescind the contract or, in the alternative,to recover damages for defendants' fraudulent misrepresentations regarding the condition of thevehicle. Supreme Court granted defendants' motion for summary judgment dismissing thecomplaint and denied plaintiff's cross motion for summary judgment. Plaintiff appeals and we[*2]affirm.
Supreme Court properly dismissed plaintiff's cause of action for breach of warranty. Underthe UCC, any description of the goods, or affirmation of fact or promise relating to the goods,which is made part of the basis of the bargain creates an express warranty that the goods shallconform to such description, affirmation or promise (see UCC 2-313 [1] [a], [b]). On theother hand, "a statement purporting to be merely the seller's opinion or commendation of thegoods does not create a warranty" (UCC 2-313 [2]). Here, defendants' advertisement made nopromises or affirmations of fact as to the condition or quality of the electrical or sensory systems,throttle or catalytic converter. While the advertisement did describe the car as "gorgeous," thisgeneralized expression was merely the seller's opinion of the car and constitutes "no more than'puffery', which should not have been relied upon as an inducement to purchase the vehicle,"particularly in light of the fact that this was a used car transaction (Scaringe v Holstein,103 AD2d 880, 881 [1984]; see Sparks v Stich, 135 AD2d 989, 990 [1987]; see alsoSerbalik v General Motors Corp., 246 AD2d 724, 725-726 [1998]).
Plaintiff next asserts that defendants fraudulently misrepresented that the car was gorgeousand virtually unblemished despite their knowledge that it had been used extensively, had been inan accident and was in need of significant repairs. In order to establish fraud, " 'a party mustestablish that a material misrepresentation, known to be false, has been made with the intentionof inducing its reliance on the misstatement, which caused it to reasonably rely on themisrepresentation, as a result of which it sustained damages' " (Cohen v Colistra, 233AD2d 542, 542-543 [1996], quoting First Nationwide Bank v 965 Amsterdam, 212AD2d 469, 470-471 [1995]; see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421[1996]). As to the element of reliance, " 'if the facts represented are not matters peculiarly withinthe party's knowledge, and the other party has the means available to him [or her] of knowing, bythe exercise of ordinary intelligence, the truth . . . of the representation, he [or she]must make use of those means, or he [or she] will not be heard to complain that he [or she] wasinduced to enter into the transaction by misrepresentations' " (Clearmont Prop., LLC vEisner, 58 AD3d 1052, 1056 [2009], quoting Schumaker v Mather, 133 NY 590,596 [1892]; see Danann Realty Corp. v Harris, 5 NY2d 317, 322 [1959]; Tanzman v La Pietra, 8 AD3d706, 707 [2004]).
Here, all of the deficiencies that plaintiff has alleged could have been easily discovered byroutine investigation. Plaintiff could have contacted defendants to inquire about the vehicle or itshistory (as defendants' advertisement specifically invited prospective purchasers to do), procureda vehicle history report (as recommended on eBay's Web site) or hired a mechanic in Nevada toinspect and/or examine the car before purchasing it. Instead, plaintiff made no attempt toascertain the true condition or history of the vehicle prior to his purchase. Further, there can beno doubt that plaintiff could have ascertained the true facts with reasonable diligence, inasmuchas a mechanical examination of the vehicle and vehicle history report—steps whichplaintiff took only after delivery of the vehicle—revealed exactly those conditionsof which plaintiff now complains. Plaintiff's claim that he was prevented from inspecting thevehicle simply because it was located in Nevada is insufficient to defeat defendants' summaryjudgment motion (see Mooney v Buck, 245 AD2d 999, 999 [1997]; Cohen vColistra, 233 AD2d at 543; Vandervort v Higginsbotham, 222 AD2d 831, 832[1995]). Thus, having " 'unreasonably failed to investigate the truth of the allegedmisrepresentation[s]' " (Mooney v Buck, 245 AD2d at 1000, quoting Nestler vWhiteside, 162 AD2d 845, 848 [1990]; see Cohen v Colistra, 233 AD2d at 543;Callahan v Miller, 194 AD2d 904, 906 [1993]; Barcomb v Alford, 125 AD2d907, 908 [1986]), plaintiff failed to prove that his reliance on those representations wasjustifiable and, [*3]therefore, his causes of action sounding infraud were properly dismissed.
Spain, Rose, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed, with costs.