| Peters v Bimmers Benz Com. |
| 2006 NY Slip Op 52198(U) [13 Misc 3d 137(A)] |
| Decided on November 22, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, Bronx County (Raul Cruz, J.), entered February 16, 2006, after trial, in favor of plaintiff and awarding him the principal sum of $5000.
PER CURIAM:
Judgment (Raul Cruz, J.), entered February 16, 2006, reversed, without costs, and action dismissed.
Giving proper effect to the clear and unambiguous statement on the face of the bill of sale that "DEPOSITS ARE NON REFUNDABLE STORE'S CREDIT ONLY," there was no legal basis for the small claims award reimbursing plaintifffor his "non-refundable" deposit given in connection with the purchase of a used automobile. Inasmuch as the terms of the contract of sale entitled plaintiff to a store credit only, the trial court, in awarding plaintiff a full refund of the deposit, inappropriately rewrote the parties' agreement under the guise of contract interpretation (see 85th St. Rest. Corp. v Sanders, 194 AD2d 324, 326 [1993]). Dismissal of the action accomplishes "substantial justice" consistent with substantive law principles (CCA 1807).
This constitutes the decision and order of the court.
Decision Date: November 22, 2006