Steven NOBLES, Plaintiff, v. Tajudeen AKINWANDE, Defendant.
The instant action is for breach of an agreement. The Small Claims Card, the equivalent of a complaint, merely states that on May 21, 2019, defendant breached an agreement between the parties, causing plaintiff to incur $4,000 in damages. However, after a conference and trial of this action, it is clear that plaintiff's claim is one for rescission of a written agreement allegedly procured by fraud. The agreement before the Court - a Bill of Sale - excludes the implied warranty of merchantability and of fitness under the Uniform Commercial Code (UCC), and would thereby bar the instant action. Specifically, plaintiff alleges that he purchased a vehicle from defendant, which per the Bill of Sale was purchased “as is.” However, plaintiff alleges that defendant never disclosed that the vehicle had been involved in prior accidents and had sustained damage as a result. Had plaintiff known about the foregoing damage, he contends that he would not have purchased the vehicle. As a result of the foregoing, plaintiff contends that he had to spend money to fix the vehicle and further incurred travel expenses because he could not use the vehicle to get back home. Defendant contends that he fully disclosed all prior damage to the vehicle and that he was not aware of any prior accident involving the vehicle he sold to defendant. Defendant further contends that pursuant to the Bill of Sale executed by plaintiff, he sold the car “as is,” such that defendant is not responsible for any subsequent repairs of the vehicle.
Upon the testimony and evidence proffered at trial, the Court hereby finds in favor of defendant.
Plaintiff testified, in pertinent part, as follows: On May 20, 2019, he purchased a 2009 Ford Expedition from defendant for $2,600. Plaintiff found the vehicle on Facebook Market Place and contacted defendant, who indicated that the vehicle had a clean title, had not been in any accidents, was in good condition, and had no rust. Plaintiff indicated that because he lived in South Carolina, he would send a friend to defendant's home in the Bronx to inspect the vehicle. On May 9, 2019, plaintiff's friend indicated that he saw, inspected, and test drove the vehicle. Besides needing to jump-start the vehicle, plaintiff's friend indicated that the vehicle drove well and looked ok. Plaintiff's friend paid for the vehicle and at some point plaintiff executed a Bill of Sale. On May 30, 2019, plaintiff's friend picked up the vehicle from defendant's home, intending to drive it to plaintiff in South Carolina. Forty minutes into the drive, somewhere in New Jersey, the vehicle overheated. Plaintiff contacted defendant to complain and defendant denied that he was aware of any issues with the vehicle. Plaintiff demanded his money back and defendant refused. The vehicle was towed to a repair shop where plaintiff learned that it had a broken coolant tank and a seized caliper. Plaintiff subsequently discovered that the vehicle had sustained damage to the front fender on the driver's side, near the coolant tank. On June 24, 2019, plaintiff again spoke to defendant and demanded his money back and defendant again refused. Plaintiff repaired the vehicle, which involved replacing the coolant tank and a caliper.
Plaintiff submitted several documents into evidence, only two of which merit discussion. First, plaintiff submitted a document titled Motor Vehicle Bill of Sale (Plaintiff's Exhibit 1), which indicates that on May 20, 2019, defendant sold plaintiff a 2008 Ford Expedition for $2,600. The document, signed by the parties, states that the “[c]ar is sold AS IS and WHERE IS and [s]eller give [sic] no warranty either express or implied.” The document further indicates that plaintiff or his agent “inspected and together with [s]eller carried out a text [sic] drive on the car and is now acceptable to buyer as is, where is.” Second, plaintiff submitted a multi-page document (Plaintiff's Exhibit 8), which indicates that on December 27, 2018, the instant vehicle was sold by an online website called Property Room. Pictures of the vehicle appended to the foregoing exhibit indicate damage - a dent - to the car's front driver's side fender near the headlight as well as a dent to the rear bumper near the driver's side of the vehicle.
Defendant testified, in pertinent part, as follows: On May 6, 2019, plaintiff contacted him about purchasing a vehicle defendant was selling on Facebook Market Place. Plaintiff arranged for a friend to inspect the vehicle and on May 9, 2019, plaintiff's friend inspected the vehicle and test drove it. While plaintiff's friend inspected the vehicle, defendant disclosed that the vehicle previously had some damage to the front and back, but which defendant repaired. Defendant testified that this information was conveyed by plaintiff's friend to plaintiff by phone in defendant's presence. On May 20, 2019, plaintiff's friend paid for the vehicle and on May 30, 2019, plaintiff's friend picked-up the vehicle. Before plaintiff's friend left defendant's home, defendant told plaintiff's friend that he should ensure that the vehicle was ok to drive since it had been sitting for several days. Defendant denied any knowledge of any prior accidents involving the vehicle. Furthermore, defendant refused to return any money to plaintiff because the vehicle had been sold “as is.”
Defendant submitted several documents in evidence, none of which are pertinent to the Court's decision.
Based on the foregoing, the Court finds in defendants' favor. Significantly, notwithstanding the allegations in the Small Claims Card, as noted above, this action is actually one for rescission of an agreement based on fraudulent inducement. However, as will be discussed in detail hereinafter, plaintiff failed to establish any fraudulent inducement so as to render the agreement between the parties unenforceable. Thus, plaintiff is bound by the Bill of Sale, which insofar as it excludes the applicability of implied warranties under the UCC, precludes the claims against defendant for the damages asserted. Stated differently, because plaintiff agreed to purchase the vehicle “as is,” and thus, without any warranties from defendant, defendant bears no liability.
It is well settled that “in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v. McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]). Moreover,
[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations(Gass v. Gass, 42 AD3d 393, 401 [1st Dept 2007]). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is to be accorded great deference (Ning Xiang Liu v. Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed (Saperstein v. Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]).
Because this is a Small Claims case, the Court is bound by § 1804 of the New York City Civil Court Act, which states, in relevant part, that [t]he court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or mentally ill person.
Thus, wide latitude is given to all litigants before this Court and this Court dispenses with the strictures and exactness applicable in other tribunals.
It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish, no matter how unwise they may seem to others (Rowe v. Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 ). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement, rather than reform it (Grace v. Nappa, 46 NY2d 560, 565 ). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which is the very contract itself and the terms contained therein (Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 ). Thus, it is well settled that “when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms” (Vermont Teddy Bear Co., Inc. v. 583 Madison Realty Company, 1 NY3d 470, 475  [internal quotation marks omitted] ). Moreover, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach, of course, serves to preserve “stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory” (Wallace v. 600 Partners Co., 86 NY2d 543, 548  [internal quotation marks omitted] ).
Provided a writing is clear and complete, evidence outside its four corners “as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” (W.W.W. Assoc., Inc. v. Giancontieri, 77 NY2d 157, 162 ; see Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 ; Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 76 NY2d 256, 269-270 ; Judnick Realty Corp. v. 32 W. 32nd St. Corp., 61 NY2d 819, 822 ). Whether a contract is ambiguous is a matter of law for the court to decide (W.W.W. Assoc., Inc. at 162; Greenfield at 169; Van Wagner Adv. Corp. v. S & M Enterprises, 67 NY2d 186, 191 ). A contract is unambiguous if the language it uses has “definite and precise meaning, unattended by danger of misconception in purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion” (Greenfield at 569; see Breed v. Ins. Co. of N. Am., 46 NY2d 351, 355 ). Hence, if the contract is not reasonably susceptible to multiple meanings, it is unambiguous and the court is not free to alter it, even if such alteration reflects personal notions of fairness and equity (Greenfield at 569-570). Notably, it is well settled that silence, or the omission of terms within a contract are not tantamount to ambiguity (id. at 573; Reiss v. Financial Performance Corp., 97 NY2d 195, 199 ). Instead, the question of whether an ambiguity exists must be determined from the face of an agreement without regard to extrinsic evidence (Greenfield at 569-570), and an unambiguous contract or a provision contained therein should be given its plain and ordinary meaning (Rosalie Estates, Inc. v. RCO International, Inc., 227 AD2d 335, 336 [1st Dept 1996]).
In the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello v. Swift & Co., 253 NY 159, 162 ; Metzger v. Aetna Ins. Co., 227 NY 411, 416 ; Renee Knitwear Corp. v. ADT Sec. Sys., 277 AD2d 215, 216 [2d Dept 2000]; Barclays Bank of New York, N.A. v. Sokol, 128 AD2d 492, 493 [2d Dept 1987]; Slater v. Fid. & Cas. Co. of NY, 277 AD 79, 81 [1st Dept 1950]). In discussing this long-standing rule, the court in Metzger stated that [i]t has often been held that when a party to a written contract accepts it as a contract he is bound by the stipulations and conditions expressed in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms. This rule is as applicable to insurance contracts as to contracts of any kind.
(id. at 416 [internal citations omitted] ).
The essential elements in an action for breach of contract “are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach” (Dee v. Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v. IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v. J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694, 695 [2d Dept 1986]). Unless expressly proscribed by the Statute of Frauds (General Obligations Law § 5-701), a contract or agreement need not be in writing (see generally McCoy v. Edison Price, Inc., 186 AD2d 442, 442-443 [1st Dept 1992] [Alleged oral agreement which, by its terms, was to last for as long as defendant remained in business was incapable of performance within one year, rendering it voidable under Statute of Frauds.]; Karl Ehmer Forest Hills Corp. v. Gonzalez, 159 AD2d 613, 613 [2d Dept 1990] [“An oral promise to guarantee the debt of another is barred by the Statute of Frauds.”] ).
A contract can be rescinded, rendering it unenforceable when it is established that it has been induced though fraud (Bd. of Managers of Soundings Condominium v. Foerster, 138 AD3d 160, 164 [1st Dept 2016]; Sokolow, Dunaud, Mercadier & Carreras, LLP v. Lacher, 299 AD2d 64, 70 [1st Dept 2002]). Fraudulent inducement means a “knowing misrepresentation of material fact, which is intended to deceive another party and to induce them to act upon it, causing injury” (Sokolow, Dunaud, Mercadier & Carreras, LLP at 70; see Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 NY2d 112, 119 ; Bd. of Managers of Soundings Condominium at 164; Brown v. Lockwood, 76 AD2d 721, 730 [2d Dept 1980]).
After considering all of the evidence presented at trial, the Court credits defendant's testimony that beyond his knowledge that the vehicle had some damage to the front end and rear bumper, he had no knowledge that the instant vehicle had otherwise been involved in an accident. Moreover, the Court finds that defendant conveyed the foregoing to plaintiff's friend who simultaneously conveyed the same to plaintiff.
Thus, here, where the parties memorialized their rights regarding the sale of the vehicle in the Bill of Sale, the evidence does not demonstrate the plaintiff was fraudulently induced into purchasing the vehicle and signing the Bill of Sale. To be sure, fraudulent inducement means a “knowing misrepresentation of material fact, which is intended to deceive another party and to induce them to act upon it, causing injury” (Sokolow, Dunaud, Mercadier & Carreras LLP at 70; see Jo Ann Homes at Bellmore, Inc. at 119; Bd. of Managers of Soundings Condominium at 164; Brown at 730). Contrary to plaintiff's assertion - that he would not have purchased the vehicle or signed the Bill of Sale had he been apprised that the vehicle had been previously damaged or involved in an accident - crediting defendant's testimony, the Court finds that defendant did convey to plaintiff that the vehicle had been damaged, and plaintiff nonetheless chose to purchase the vehicle. With regard to plaintiff's contention that defendant also knew that the vehicle had been involved in an accident and surreptitiously withheld that information, the credible record fails to demonstrate that beyond the damage to the vehicle, which information defendant conveyed to plaintiff, defendant had any knowledge of any prior accidents with respect to the vehicle. Thus, because, here, there was no misrepresentation of a material fact such that there was no fraudulent inducement, rescission of the contract is unwarranted, and the rights and liabilities between the parties are governed by the written Bill of Sale (Bd. of Managers of Soundings Condominium at 164; Sokolow, Dunaud, Mercadier & Carreras LLP at 70).
Because the parties' rights and liabilities are governed by a written agreement, plaintiff's breach of contract claim must be analyzed pursuant thereto. As noted above, in order to enforce the agreement, a court must construe it in accordance with the intent of the parties, the best evidence of which is the very contract itself and the terms contained therein (Greenfield at 569). “[W]hen the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms” (Vermont Teddy Bear Co., Inc. at 475 [internal quotation marks omitted].), and “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield at 569). Moreover, the essential elements in an action for breach of contract “are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach” (Dee at 209; Elisa Dreier Reporting Corp. at 127; Brualdi at 960; JP Morgan Chase at 803; Furia at 695).
Here, the agreement between the parties - the Bill of Sale - states that the “[c]ar is sold AS IS and WHERE IS and [s]eller give [sic] no warranty either express or implied,” and that plaintiff or his agent “inspected and together with [s]eller carried out a text [sic] drive on the car and is now acceptable to buyer as is, where is.” Thus, to the extent that the claims asserted by plaintiff for breach of contract sound in breach of the warranties of merchantability and fitness, the agreement between the parties excludes the applicability of such warranties, such that defendant has not breached the agreement. To be sure, “a warranty that the goods shall be merchantable is implied in a contract for their sale” (Unif.Commercial Code § 2-314 ), and “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required ․ there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose” (Unif.Commercial Code § 2-315). Such warranties, however, may be waived (Unif.Commercial Code § 2-316). Specifically, “all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty” (Unif.Commercial Code § 2-316; Gale v. Kessler, 93 AD2d 744, 744 [1st Dept 1983]). Here, the language in the Bill of Sale, by its plain language indicates that plaintiff waived the implied warranty of merchantability and fitness. Moreover, because the implied warranty of merchantability only applies to merchants and an isolated seller of goods is not a merchant (Ewen v. Congers Auto Sales, Inc., 39 Misc 3d 145[A], *1 [App Term 2013]; McGregor v. Dimou, 101 Misc 2d 756, 760 [Civ Ct 1979]; Apex Oil Co. v. Libbey Owens Ford Co., 782 F2d 1041, *2 [6th Cir 1985]), here, defendant, who was not a car dealer, was merely an isolated seller. As such, the transaction did not confer upon plaintiff an implied warranty of merchantability.
Accordingly, defendant is not liable to plaintiff and the Court need not discuss the issue of plaintiff's damages. It is hereby
ORDERED that the Clerk enter judgment in defendant's favor and dismiss the complaint, with prejudice. It is further
ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.
Fidel E. Gomez, J.
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