A bench trial was held before this Court on March 30, 2011, at which the Court had ample opportunity to observe the demeanor and credibility of the witnesses, plaintiff, Nykia Walker and defendant, Julio Estrada. After carefully reviewing and assessing all of the evidence in this case, including the testimony of the witnesses and the exhibits introduced by the parties, the Court renders a decision and verdict as follows:

The plaintiff purchased a 2007 Mercedes automobile from the defendant, Auto Palace, Inc. on December 19, 2009. Julio Estrada, who is sued herein as Jay Torres, was the salesman. On consent of the parties, the name of defendant, Jay Torres, was amended to reflect his true name of Julio Estrada.

The advertised price of the vehicle was $18,900.00. Attendant with and additional to the price of the vehicle were four items which plaintiff agreed to pay: a loan processing fee in the amount of $1,825.00; a "Deluxe PKG/ETCH25K" in the amount of $2,737.50; "XTRACARE S.R.V.S." in the amount of $3,000.00; "NYS & DMV FEE" in the amount of $450.00. These items, with taxes plus a $45.00 fee for processing the registration and title, brought the total sale price of the vehicle to $28,575.25. Plaintiff paid $2,500.00 down, and financed the remaining $26,075.25.

In this action, plaintiff disputes the additional charges, claiming they were unnecessary and that she had attempted to cancel some of them, but was ignored and frustrated by the defendants. The plaintiff also claims that the defendants failed to deliver an additional key to the vehicle, which is valued at $250.00. At trial, the defendants agreed to pay the plaintiff $250.00 as reimbursement for this additional key.

The testimony of the witnesses and the documents submitted into evidence explained the additional charges. The loan processing fee of $1,825.00, was a fee of a dollar a day for the term of financing, which was 5 years. The "Deluxe PKG/ETCH25K" fee in the amount of $2,737.50, was [*2]a fee of $1.50 a day over the term of the financing, charged for the installation of anti-theft etching on the windows of the car and provides insurance up to $25,000.00 in the event the car is stolen. The "XTRACARE S.R.V.S." charge of $3,000.00 is for an extended warranty on the vehicle. The NYS & DMV FEE was actually the fee to register the vehicle in Pennsylvania.

The additional fees charged the plaintiff, although questionable and expensive, were signed for and agreed to in writing by the plaintiff at the time of the sale. There was no testimony alleging that defendants made any misrepresentations to the plaintiff about these charges. It is clear that the plaintiff was attracted to the price of the car, and was willing to travel from Pennsylvania to purchase it. The plaintiff signed the papers and drove away with the car, agreeing to also purchase and pay for the additional items, and is not entitled to a refund because she later decided they were unnecessary. Defendants agreed to sell the car to the plaintiff and obtain financing for her at the time of the deal, pursuant to the entire agreement, not minus the cost of the items she later decided to cancel.

However, the extended warranty agreement permitted cancellation within three months of purchase of the car with a thirty percent cancellation fee to the dealer. The Court finds that the plaintiff requested cancellation of the warranty within the three month period but was frustrated by the defendants in her attempts to cancel the agreement. Mr. Estrada's testimony as to the events surrounding the cancellation of the extended warranty was not credible. The Court finds that the plaintiff was not notified that the warranty would not be cancelled because she had modified the language in the cancellation form, as claimed by the defendants. As a result, the three month cancellation period expired and the plaintiff was prevented from receiving a refund of the extended warranty charge minus the thirty percent cancellation fee. Therefore, based on the testimony of the witnesses and other evidence in the case, the Court finds that plaintiff, Nykia Walker, is entitled to a refund in the amount of $2,100.00 for seventy percent of the charges paid for the "XTRACARE S.R.V.S." extended warranty on the vehicle.

The Court also finds, based on the trial evidence, that the registration fee of $450.00 charged the plaintiff was improper. Julio Estrada testified that the registration fee was "an estimate" of the cost to register the vehicle in another state and was intended to cover only the Pennsylvania vehicle registration fee and not the amount Auto Palace, Inc. pays third parties to register a car in another state.The plaintiff's testimony that the Pennsylvania fee for registering the vehicle was only $37.00 was not controverted by the defendants. Therefore, plaintiff is entitled to a refund of $413.00 which she overpaid as a registration fee.

The testimony and other evidence at trial demonstrated that Julio Estrada was acting as an employee and agent of Auto Palace, Inc. in connection with the sale of the Mercedes automobile to the plaintiff, Nykia Walker He was employed in the financing department, with the authority to carry out the financing arrangement, as well as the sale of the automobile and extra items in question. "When an agency relationship is established, the principal will be liable to third parties for the acts of its agent that were within the scope of the agent's actual or apparent authority." Amusement Indus. v. Stern, 693 F.Supp.2d 327, 344 (S.D.NY 2010). Therefore, defendant, Auto Palace, Inc., is liable for the actions of Julio Estrado, and the plaintiff is entitled to recover from said [*3]corporate defendant damages in the sum of $2,763.00. These damages include: $2,100 for the extended warranty cancellation; $413.00 for the registration fee overpayment; $250.00 for the cost of an additional key.

Plaintiff did not offer any evidence that Julio Estrada, whom she knew and sued as Jay Torres, is an owner of Auto Palace, Inc., who exercised dominion and control over the corporation to commit a fraud against her, as is required to permit piercing of the corporate veil. EED Holdings v. Palmer Johnson Acquisition Corp., 228 F.R.D. 508,512 (S.D.NY 2005): TNS Holdings Inc. v MKI Sec. Corp., 92 N Y 2d 335, 339 (1998). In any event, such a remedy would be unavailable to the plaintiff in this action since it is a form of equitable relief which the Civil Court lacks jurisdiction to award. 19 West 45th St. Realty Co. v. Doram Elec. Corp., 233 AD2d 184 (1st Dept. 1996). Therefore, the individual defendant is not liable to the plaintiff and the complaint is dismissed as against the defendant, Julio Estrada sued herein as Jay Torres.

Accordingly, the plaintiff, Nykia Walker, is awarded a judgment against the defendant, Auto Palace, Inc. in the sum of $2,763.00 with interest from the date of summons, May 25, 2010, plus costs and disbursements. The complaint is dismissed as against defendant Julio Estrada sued herein as Jay Torres, without costs or disbursements.

The Clerk of the Court is hereby directed to enter judgment accordingly.

This constitutes the verdict and order of the Court.

Dated: May 23, 2011.

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Hon. Carmen R. Velasquez

Judge, Civil Court