[*1]
Loiseau v Schain
2005 NY Slip Op 51472(U) [9 Misc 3d 127(A)]
Decided on September 16, 2005
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 16, 2005
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: September 16, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., RIOS and BELEN, JJ.
2005-35 Q C

Pierre Loiseau d/b/a ELIE & JIMMY AUTO REPAIR SHOP, Respondent,

against

Howard Schain, Appellant.


Appeal from a judgment of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered June 21, 2004. The judgment awarded plaintiff, after a non-jury trial, the principal sum of $2,800.


Judgment unanimously reversed without costs and action dismissed.

The sale of the motor vehicle to plaintiff contained no warranty of title, express or implied, by the Marshal acting in his individual capacity (see generally UCC 2-312 [2], Comment 5; Travitsky v Oysterman's Dock Co., 65 AD2d 554 [1978]). We likewise find no basis for any claim sounding in negligence as a result of the Marshal's sale pursuant [*2]
to his official duties. Plaintiff may, however, seek restitution from the judgment creditor, the City of New York, pursuant to CPLR 5237. Accordingly, in this small claims action, substantial justice requires that the action be dismissed.
Decision Date: September 16, 2005