NORWEST FINANCIAL LEASING INC v. PARISH OF ST AUGUSTINE (1998)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about November 10, 1997, which, insofar as appealed from, denied plaintiff's motion for summary judgment in an action to recover past and accelerated charges plus attorneys' fees under an equipment lease, unanimously affirmed, with costs.

 Concerning the lease, the general disclaimer of warranties was inconsistent with the express undertaking to service and repair the leased equipment, and is therefore ineffective (UCC 2-316[1];  see, Wintel Serv. Corp. v. MSW Elec. Corp., 161 A.D.2d 764, 556 N.Y.S.2d 359).   Concerning the assignment, triable issues of fact exist as to whether plaintiff, as assignee of the lessor, took defendant's lease in good faith and without notice of defendant's claims that the equipment was defective, which, if resolved in defendant's favor, would render plaintiff subject to defendant's claims and defenses notwithstanding the lease provision that defendant would not assert any claims or defenses against an assignee (UCC 9-206[1];  9-318[1] ). In particular, plaintiff has not explained why it did not send defendant notice of the assignment until March 13, 1996, almost one year after the purported assignment, six months after defendant ceased making lease payments (all of which had been made to the assignor without any complaint or correction) and one month after the assignor sent a notice of default and threatened to accelerate the payments as provided in the lease.   Furthermore, both the February 1996 notice of default and the March 1996 notice of assignment were signed by the same person, and the assignor and plaintiff share the same business address and suite as well as attorneys.

MEMORANDUM DECISION.