| Vandorn v Andersen |
| 2006 NY Slip Op 50240(U) [11 Misc 3d 127(A)] |
| Decided on February 9, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered November 18, 2004. The judgment, after a nonjury trial, awarded plaintiff the sum of $2,857.50, including interest from October 27, 2001.
Judgment unanimously reversed without costs and a new trial ordered limited to the issue of whether the rifle can be legally possessed. In the event the rifle may be legally possessed, judgment is directed to be entered in favor of plaintiff in the sum of $2,400, plus interest from October 27, 2001, and contemporaneous with payment of said judgment, plaintiff is to return the rifle to defendants; otherwise, judgment is
directed to be entered in favor of plaintiff in the sum of $2,400, plus interest from October 27, 2001.
The evidence adduced at the small claims trial supports the lower court's determination that the rifle sold to plaintiff was defective. Since the defect in the rifle substantially impaired its value to plaintiff, he justifiably revoked his acceptance thereof (UCC 2-608). However, plaintiff has not established a basis for his revocation of acceptance of the non-defective scope mount he purchased at a later date. Where a purchaser justifiably revokes his acceptance, he is entitled to a return of the purchase price paid (UCC 2-711 [1]), here $2,400 for the rifle, and a seller is generally entitled to a return of such item (UCC 2-608 [3]; 2-602 [2]). However, under the [*2]circumstances presented and based on statements made by plaintiff at oral argument, an issue of fact exists as to whether the rifle can be legally possessed and returned to the defendants. Therefore, a new trial is required to resolve said issue. In the event the court below finds that the rifle may be legally possessed and transferred, payment of the $2,400 judgment, plus interest from October 27, 2001, should be conditioned upon plaintiff's return of the rifle (see e.g. Ash v J. S. Elias, Inc., 2002 NY Slip Op 40542[U] [App Term, 2d & 11th Jud Dists]); otherwise, judgment should be entered in favor of plaintiff in the sum of $2,400, plus interest from October 27, 2001, unconditionally.
Decision Date: February 09, 2006