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Civil Court, City of New York.

FOLEY, INCORPORATION, Petitioner, v. NICHOLAS INDUSTRIES, a business entity of unknown form or origin and Kevin Oreckinto, Respondent.


Decided: March 18, 2019

For Plaintiff: Mark Magnozzi Esq., The Magnozzi Law Firm, 1500 Hyland Blvd., Huntington, New York 11743 For Defendant: Jeffrey Borrell Esq., Borrell and Riso LLP, 23 Green Street, Suite 302, Staten Island, New York 10305

Recitation, as required by Civil Practice Law and Rules (CPLR) § 2219(a), of the papers considered in the review of this Motion:

Papers Numbered

Notice of Motion and Affidavits Annexed 1,2

Answering Affidavits 3, 4

Replying Affidavits 5

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action for breach of contract, plaintiff seeks payment for unpaid services rendered from June 2015 through September 2015. Defendant moves for an order granting summary judgment in defendant's favor, dismissing the complaint, and on defendant's counterclaim, and awarding defendant the sum of $ 33,875.

Plaintiff and defendant are in the business of renting construction equipment to contractors. On May 1, 2013, defendant purchased equipment from plaintiff, which, included a used construction hydraulic hammer for which defendant paid $ 21,400.

Defendant claims that at the time of purchase, the hammer was defective, unfit to be used for construction; and that plaintiff falsely stated that the hammer was two to three years old and rebuilt within two months prior, when it fact, it had been manufactured in 2004. Defendant contends plaintiff further represented to him that the hammer was fit to be used in defendant's construction business, and that in reliance on plaintiff's skills and judgement, defendant purchased the hammer for that purpose.

In opposition, plaintiff claims defendant informed him of intent to purchase a hydraulic hammer. Plaintiff advised defendant that he had a used hydraulic hammer available for sale “as is,” and that the hammer's brushing had been replaced on March 14, 2012. Defendant agreed to buy the hammer in “as is” condition.

On July 20, 2015, defendant called plaintiff, complaining that the hammer was malfunctioning. Plaintiff contends that it dispatched a technician to inspect the hammer, and charged defendant $ 1880 for the inspection, which it memorized in a July 20, 2015 invoice bearing the technician's recommendation that the brushing be replaced. On September 14, 2015, plaintiff sent defendant a letter that the cost of repairing the hammer would be $ 8909.24. On September 17, 2015, defendant demanded a full refund for the equipment.

Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978] ). The court's function in determining such a motion, is issue finding, not issue determination. (see Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957] ). To prevail, the movant must establish entitlement to judgment as a matter of law by submitting admissible evidentiary proof (see Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979] ), with which includes an affidavit of a person having knowledge of the facts and other admissible evidence (see GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965 [1985] ). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (see Winegrad v. New York University Medical Center, 64 NY2d 851 [1985] ).

In the case at bar, defendant moves for summary judgment for breach of contract, claiming inter alia, that plaintiff's sold him a defective hydraulic hammer. Purchaser may, pursuant to UCC 2-714, sue for breach of warranty for nonconforming goods provided that reasonable notice of defect had been given, which depends on the circumstances of the transaction (see Arkwin Industries, Inc. v. Hadco Aluminum & Metal Corp., 123 AD2d 806 [App Div, 2nd Dept 1986] ).

 Reasonable notice:

Defendant claims that the hammer was defective as of the date of purchase. However, the record is devoid of evidence that he notified plaintiff of the defect, or of his rejection of the product, at any time prior to July 20, 2015, twenty-six months after defendant's purchase of the hammer. While defendant states plaintiff failed to “fix the hammer numerous times,” with the implication that it had notified plaintiff of the defect before July 20, 2015, the record is absent any details including dates, nature, or the results of the “numerous” repairs, which render defendant's statement nonprobative. (see JMD Holding Corp. v. Cong. Fin. Corp., 4 NY3d 373 [2005], holding that a conclusory affidavit providing no factual basis to support a conclusion is without evidentiary value).

Defendant further fails to establish his rejection of the hammer twenty-six months after its purchase, reasonably noticed plaintiff of defendant's rejection of the product. (see Sherkate Sahami Khass Rapol v. Henry R. Jahn & Son, 701 F.2d 1049 [1983], holding that that purchaser who used the machine on two road constructions and kept it for sixteen months before attempting to return it, failed to provide notice within a reasonable time).

Absent evidence defendant provided plaintiff reasonable notice of his revocation of acceptance of the hammer, defendant fails to establish entitlement to summary judgement, which warrants denial of its motion (see Vermette v. Kenworth Truck Co., 68 NY2d 714 [1986] ) regardless of the sufficiency of the opposing papers (id Winegrad v. New York University Medical Center, at 851).

 Reliance on plaintiff's skills and judgement:

Had defendant met its prima facie entitlement to summary judgment, shifting the burden to plaintiff to raise an issue of fact, plaintiff has that burden. Defendant claims he purchased the hammer, in reliance on plaintiff's judgement that the hammer was fit to be used in defendant's business. However, defendant does not disprove plaintiff's claim that the hammer was sold in “as is” condition, which thus, remains a material issue of fact.

Moreover, as defendant has been in the business of renting construction equipment to contractors, his comparative knowledge and experience regarding its need for a product may preclude a finding that he was relying on plaintiff's expertise that the instant hammer was fit to be used in defendant's business, or that the plaintiff had reason to know that defendant was relying on his experience. (see B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, 982 F Supp 302 [SDNY 1997]; also, UCC 2-316 (3)(c), an implied warranty can be excluded by “coursed of dealing of course of performance or usage of trade”). Accordingly, there is a factual issue as to whether defendant is deemed knowledgeable as to the workings of the construction equipment, thus, precluding his reliance on plaintiff's alleged representation that the hammer is fit to be used in defendant's business.


A material issue of fact further remains as to whether the hammer sold to the defendant was in good working order, fit for its intended purposes. Defendant admits that following the purchase of the hammer, the hammer was used on five occasions, and that defendant rented the hammer to a third-party contractor, which used it twice to cut construction material. As the court must view the evidence in a light most favorable to that party, there are issues of fact as to whether the hammer malfunctioned as a result of its misuse by defendant or the third party who had rented the hammer from defendant. (See, Negri v. Stop & Shop, Inc., 65 NY2d 625 [1985] ).

Accordingly, defendant's motion for summary judgment is denied in its entirety.

Odessa Kennedy, J.

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