| Cardena v Toyota of Manhattan |
| 2006 NY Slip Op 50750(U) [11 Misc 3d 143(A)] |
| Decided on April 27, 2006 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from a judgment of the Small Claims Part of the Civil Court, New York County (Anil C. Singh, J.), entered September 28, 2004, which, after trial, awarded plaintiff damages in the sum of $3485, plus interest, costs and disbursements.
PER CURIAM:
Judgment (Anil C. Singh, J.) entered September 28, 2004, reversed, without costs, and action dismissed.
We agree with the trial court's determination that plaintiff could not assert a claim for breach of express warranty against defendant since it did not issue the extended warranty which was allegedly breached. However, we find that there was no breach of any implied warranty of fitness or merchantability, as plaintiff drove the used vehicle for sixteen months after she purchased it from defendant before the wheel fell off. Under these circumstances, dismissal of the action is required so as to achieve substantial justice in accordance with the rules and principles of substantive law (CCA 1807).
This constitutes the decision and order of the court.
Decision Date: April 27, 2006