[*1]
| Carter v Gilbert |
| 2008 NY Slip Op 50010(U) [18 Misc 3d 1112(A)] |
| Decided on January 7, 2008 |
| Just Ct Of Town Of Ossining, Westchester County |
| Connolly, J. |
| 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Just Ct of Town of Ossining, Westchester County
Todd Carter, Plaintiff,
against
Raymond Gilbert, Defendant.
|
sc13/200707100194
Todd Carter
Plaintiff pro se
Raymond Gilbert
Defendant pro se
Francesca E. Connolly, J.
This small claims proceeding was commenced by plaintiff, Todd Carter, against defendant,
Raymond Gilbert, in Town of Cortlandt Justice Court by service of a small claims summons
dated September 6, 2007, seeking recovery for breach of contract in the sum of $3,000.00 for the
replacement of a boat motor with a cracked block. Due to a conflict, the Cortlandt Town Justices
recused themselves, and the case was transferred to this Court by Order of the Hon. Francis
Nicolai, A.J.S.C., dated September 18, 2007. The trial was initially scheduled for November 8,
2007, but was adjourned by the Court to November 26, 2007.
On November 26, 2007, both parties appeared pro se and a non-jury trial was
held. After considering the sworn testimony of the parties and witnesses and the documents
admitted into evidence, the Court makes the following findings of fact and conclusions of law:
FACTUAL
BACKGROUND:
On July 2, 2007, the defendant, Raymond Gilbert,
placed an ad for the sale of a 1985 - 21 foot Bayliner Trophy style boat with a cuddy cabin and
inboard-outboard motor, and trailer. The advertised price was $2,500.00. The defendant had
purchased the boat used from his father six years before for $6,000.00. The defendant's father had
also purchased the boat used four years before that. The engine had been replaced by the
defendant's father. The defendant had only used the boat six to ten times each year for a couple of
hours each time. However, the last time that the defendant used the boat was a year or two before
he sold it. The defendant testified that the boat was properly stored and winterized.
Gary Dine testified that he assisted the defendant in getting the boat running after
[*2]it was taken out of storage. He knew that the boat had been
sitting in storage for a couple of years. Dine had helped the defendant winterize the boat two to
three years before. Dine never rode in the boat and never saw it run in the water. When the boat
was being prepared for sale, he ran the motor with a garden hose for about 15 minutes and did
not see any leak, but admitted that the motor would run hotter in the water. He never looked at
the motor block.
On July 6, 2007, the plaintiff, Todd Carter, and his friend, Chris Russell, responded
to the ad and viewed the boat at the defendant's premises. The plaintiff described this as a fishing
boat and indicated that he had used a similar boat in the past. The boat had been in storage, so the
defendant had some difficulty getting it to run. He asked the defendant if everything on the boat
worked, to which the defendant responded that it did. The defendant had difficulty with the
throttle, which caused the boat to stall. Plaintiff knew that the boat needed some work, including
replacing the batteries and gasket, a tune-up, and some minor cosmetic repairs. In addition, the
trailer needed tires and some other minor work. Other than these repairs, which both parties
characterized as "minor," the boat seemed to be in good condition. The defendant told plaintiff
that the motor was rebuilt and that it was working great and had nothing wrong with it.
Dr. Melanie Gilbert, the defendant's wife, also testified that she heard the boat
running fine at their house at the time of sale. She and her husband decided on the price of the
boat in light of its condition, which she believed to be in good running condition. She had not
ridden in the boat in 2006 or 2007.
Chris Russell, an experienced mechanic, machinist, engine rebuilder and boat owner,
agreed with plaintiff's assessment of the boat's condition. When Russell first saw the boat, he
could not see under the motor. Although the motor would not idle, there was nothing about what
he observed to indicate that there was a cracked motor block.
The parties agreed upon a price of $2,500.00 for the boat and trailer. This was an oral
agreement and none of the terms were placed in writing. Both plaintiff and defendant agree that
the price was fair and was based upon their mutual understanding that the boat was in need of
minor repairs, but was otherwise in good working condition, with a recently rebuilt motor. Both
parties believed that at the time of sale there was nothing wrong with the boat's motor.
The plaintiff left a $200.00 deposit on July 9, 2007. The defendant agreed to bring
the boat to King's Marina where the plaintiff was going to have the boat repaired and stored. On
July 11, 2007, plaintiff paid the defendant the remaining $2,300.00 in cash for the purchase of
the boat.
Randy King, the owner of King's Marina for 22 years, is experienced in assessing
boat values and in repairing boats. The plaintiff and defendant met at his marina where the
defendant brought the boat. It was King's understanding that the plaintiff was going to store the
boat at the marina and that King was going to make necessary repairs. King looked over the
[*3]boat and asked the defendant how it ran, to which he
responded that it ran fine. King said that his schedule was busy and he did not know what work
the boat needed or when he could get to it. Initially, the plaintiff and he decided that the boot in
the back of the boat and the depth finder needed to be replaced, and that the boat needed a
tune-up and new batteries. When King first saw the boat, he thought that $2,500.00 was a fair
price for the boat and trailer based upon the boat's condition. He used the NADA guide to
determine the approximate appraised value of the boat.
King was unable to begin work on the boat until the beginning of August 2007. At
that time, he put the boat in the water and went to start it up, but it would not idle. He replaced
the carburetor and the boat seemed to run fine. However, he noticed that the longer the boat ran,
and the hotter the engine got, the more it leaked. He tried to look under the motor, but could not
see it. He took the bracket off to see the motor and noticed a crack in the block that appeared to
have an old patch over it. It appeared to be an old freeze crack that resulted from improper
winterizing. King would never use a patch to fix a motor block. Such a repair would be
temporary and would not last more than a year or two.
King called the plaintiff and told him that the engine block had a crack and that it
needed a new engine. The plaintiff came down to the marina and King showed him the crack.
The cracked motor remains at the marina for viewing. King told the plaintiff that a new
re-manufactured motor would cost $1,000.00-$1,200.00, plus labor costs to install it at $95.00
per hour for about four to five hours. He advised the plaintiff against purchasing a new motor due
to the boat's age and suggested that the plaintiff wait for him to locate a used engine.
In mid-August 2007, the plaintiff used a disposable camera to take 25 photographs of
the boat and engine at King's Marina. Some of the photographs show the cracked block and
leaking anti-freeze. The crack appears to be old and rusty in color.
Russell inspected the crack in the block and also testified that it appeared to be over
a year old and appeared to be patched by an epoxy resin. He also testified that this type of repair
is unacceptable and that there is no way to repair a cracked block, as the crack just gets bigger in
size.
The plaintiff spoke to the defendant about the cracked block and offered him the
opportunity to look at it. The defendant refused, insisting that the engine was in good condition,
and that if it was cracked that King likely did it. The defendant remained steadfast that there was
nothing ever wrong with the boat's engine and that it was in good condition when it was sold.
The defendant took no action to determine the validity of the plaintiff's claims. The plaintiff
denied ever using the boat before the cracked block was discovered.
About three weeks before the trial date, King found a used 3.0 liter OMC engine
from another customer that was a perfect fit. Plaintiff agreed to purchase the motor for $800.00,
plus labor costs of $400.00, totaling $1,200.00. King installed the motor last week, but is [*4]waiting to be paid.
DISCUSSION/ANALYSIS:
Section 2-313 of the Uniform
Commercial Code, as adopted in New York, relates to express warranties made by a seller of
goods to a buyer, and provides as follows:
Express warranties by the seller are created as follows:
Any affirmation of fact or promise made by the seller to the buyer which relates to
the goods and becomes part of the basis of the bargain creates an express warranty that the goods
shall conform to the affirmation or promise.
Any description of the goods which is made part of the basis of the bargain creates
an express warranty that the goods shall conform to the description.
(2) It is not necessary to the creation of an express warranty that the seller use formal
words such as "warranty" or "guarantee" or that he have a specific intention to make a warranty,
but an affirmation merely of the value of the goods or a statement purporting to be merely the
seller's opinion or commendation of the goods does not create a warranty.
In order to prevail for breach of an express warranty, a plaintiff must establish that there was
an affirmation of fact or a promise by the seller the natural tendency of which was to induce the
buyer to purchase. (Anderson v. Bungee International Manufacturing Corp., 44
F.Supp.2d 534, 541 [S.D.NY 1999]). "Such an affirmation of fact must be distinguished from
puffery." Id. "[O]pinions, puffery and other similar language [are]not actionable as a
breach of warranty. Id. (citing Independent Order of Foresters v. Donaldson, Lufkin &
Jenrette Inc., 919 F.Supp. 149, 152 [S.D.NY 1996]). Generalized statements and exaggerated
claims made by a seller about a product, which a reasonable consumer would not rely upon as a
statement of fact, do not create an express warranty. Id. However, where the seller makes
representations of fact about specific characteristics of the product, which were relied upon by
the buyer as part of the basis of the bargain, an express warranty is created. (Kates Millinery,
LTD., v. Benay-Albee Corp., 114 Misc 2d 230 [NY Civ.Ct. 1982], aff'd 120 Misc 2d
429 [App.Term 2d and 11th Districts 1983]).
Here, the defendant testified that the engine was rebuilt and that it was in good
working condition. Even after being told about the cracked block, the defendant remained
steadfast that there was nothing ever wrong with the boat's engine and insisted that it was in good
condition when it was sold. This was the reason the defendant gave for refusing to inspect the
cracked block or take any other action to determine the validity of the plaintiff's claims. Both
plaintiff and defendant testified that the agreed upon price for the boat was fair and was based
upon their mutual understanding that the boat was in need of minor repairs, but was otherwise in
good working condition, with a recently rebuilt motor. Both parties believed that at the time of
sale there was nothing wrong with the boat's motor.
The entire sales transaction was oral, so there were no written disclaimers as to [*5]the condition of the boat, or that the boat was being sold "As Is."
Nor was there any testimony that the seller orally disclaimed liability as to the condition of the
boat and, in particular, the condition of the motor.
Once the plaintiff learned of the cracked block, he gave the defendant prompt and
adequate notice of the condition and gave him the opportunity to inspect the condition, to which
the defendant refused.
Under the facts presented here, the defendant's representations concerning the
condition of the boat's motor were reasonably relied upon by the plaintiff as part of the basis of
the bargain and therefore, were express warranties under UCC §2-313. Although the
defendant never used the words "warranty" or "guaranty," these words are not necessary to the
creation of an express warranty under UCC §2-313 (2). While the defendant argued in his
closing statement that the theory of caveat emptor, or "buyer beware," should apply, no
proof was presented to support this defense. This theory is belied by the defendant's own
testimony that he told the plaintiff that the engine was recently rebuilt and in good working
condition, and that the agreed upon sale price was based upon the value of the boat with a motor
in good working condition. The plaintiff is therefore entitled to an award of damages from the
defendant based upon breach of an express warranty. (See Barrientos v. Sulit, 133 Misc
2d 1061 [City Ct. Long Beach, NY 1986] where the Court held that the seller's representation to
the buyer that the engine had just been rebuilt was an express warranty which was relied upon by
the buyer, entitling her to recover damages.)
Under UCC §2-714 (2), "[t]he measure of damages for breach of warranty is
the difference at the time and place of acceptance between the value of the goods accepted and
the value they would have had if they had been as warranted, unless special circumstances show
proximate damages of a different amount." Plaintiff presented proof of damages in the sum of
$1,200.00, which represented the cost of a used motor in the sum of $800.00, plus labor costs of
$400.00 to install the motor. The defendant did not refute these damages, nor did he present
proof of an alternate measure of damages.
Based upon the foregoing findings of fact and conclusions of law, the plaintiff has
met its burden of proof against defendants for breach of contract. Accordingly, judgment is
granted in favor of the plaintiff for the sum of $1,200.00, plus interest at the statutory rate of 9%
per annum from July 11, 2007 and statutory costs.
The foregoing constitutes the Decision and Order of the Court.
Dated: January 7, 2008
________________________________
Hon. Francesca E. Connolly
Town Justice