Portnov v Rainbow Seven Color, Inc. (2013 NY Slip Op 51393(U))

Portnov v Rainbow Seven Color, Inc.

2013 NY Slip Op 51393(U) [40 Misc 3d 138(A)]

Decided on August 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Natalia Portnov, Respondent,

against

Rainbow Seven Color, Inc., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered January 30, 2012. The judgment, after a nonjury trial, awarded plaintiff the sum of $3,011.45.

ORDERED that the judgment is modified by providing that contemporaneously with the payment of the judgment, plaintiff shall make available to defendant the vacuum cleaner in question, if it has not already been returned to defendant; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $2,823.45, alleging that she should be refunded the monies she had paid for a vacuum cleaner that she had purchased from defendant. At a nonjury trial, plaintiff argued, in effect, that, although the time period within which she had to cancel the door-to-door sales agreement pursuant to Personal Property Law § 428 ^[FN1] had expired by a matter of hours, the agreement was, nevertheless, voidable because [*2]she had entered into it under duress. Following the trial, the Civil Court awarded judgment in favor of plaintiff in the sum of $3,011.45.

Upon a review of the record, we find that the award in favor of plaintiff provided the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The record supports the Civil Court's implicit determination that plaintiff's manifestation of assent to the agreement was induced by undue influence, since the actions of defendant's salesman compelled plaintiff, who was unable to refuse or too weak to resist, to do that which was against her free will (see Matter of Fellows, 16 AD3d 995, 996 [2005]). Nevertheless, substantial justice also requires that, contemporaneously with the payment of the judgment, plaintiff return the vacuum cleaner to defendant, if she has not already done so (see CCA 1805 [a]). [*3]