Short Form Order SUPREME COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice

,svf Short Form Order SUPREME COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice GOODFELLAS COLLISION & TOWING, INC., TRILIIAS, PART 22 NASSAU COUNTY Plaintiff Index No.: 7299/03 -against- Motion Seq. No.: 001 GENERAL MOTORS CORPORATION and GENERAL MOTORS ACCEPTANCE CORPORATION, RAMP CHEVROLET, INC. Motion Date: 05/18/05 Defendants. The following paper read on this motion: Notice of Motion... Affidavit in Support... Affidavit in Opposition... Reply...... Memorandum of Law... The motion by defendants, General Motors Corporation ("GM"), General Motors Acceptance Corporation ("GMAC") and Ramp Chevrolet, Inc. ("Ramp ), for an order of ths Court, pursuant to CPLR 3212, granting paral summar judgment dismissing the plaintiff s, Goodfellas Collsion & Towing, Inc. ("Goodfellas ), complaint in its entirety as to GMAC and Ramp to the extent that it asserts a cause of action for breach of contract, or implied waranty and against GM to the extent it seeks to recover incidental and consequential damages, is granted. GM is the manufacturer of a vehicle commonly referred to as the Chevrolet Kodiak Medium Duty Truck (herein "the trck"). In January 2000 GM completed final

assembly of the truck, VIN: 1GBJ6H1C1YJ513584, and sold the vehicle to Ramp, an independent authorized GM dealer located in Port Jefferson Station, New York. GM does not own any portion of Ramp, nor does it manage, or supervise the day to day activities of Ramp. Pursuant to the affidavit of Sharon J. Ledoux, the legal assistant responsible for supervising GM' s defense of breach of waranty litigation, and the affidavit of Richard Ferrente, the commercial trck sales manager and tow trck finance manager, the legal relationship between GM and Ramp is set fort in a contractual agreement between GM and Ramp Chevrolet known as a "Dealer Sales and Service Agreement." Aricle 17. 1 of that agreement provides as follows: This agreement does not make either pary the agent or legal representative of the other for any purpose, nor does it grant either pary authority to assume or create any obligation on behalf of or in the name of the others. No fiduciar obligations are created by this agreement. On Januar 13, 2000 at the request of Ramp, the vehicle was shipped to non-pary Chevron, Inc., which converted the vehicle for use as a flat bed tow truck. On April 7, 2000, Chevron completed the conversion and shipped the vehicle to Ramp. On Januar 8, 2001, plaintiff entered into a separate agreement with Ramp to purchase the vehicle and on Januar 16, 2001, plaintiff entered into a Retail Installment Contract with Ramp relating to the financing of the vehicle. In this Retail Installment

Contract, Ramp assigned its rights to GMAC, pursuant to a financing agreement with GMAC, a financing institution that does not manufacture, warant, or sell vehicles. The Purchase Agreement between plaintiff and Ramp was signed by both paries. Pursuant this agreement, plaintiff acknowledged that he was aware that the vehicle was not waranted by Ramp, or GMAC, and instead, the sole waranties on the vehicle were the written limited waranties provided by GM. See Richard Ferrante s Affdavit in Support of Motion for Partial Summary Judgment, Exhibit B. Specifically, the agreement provided as follows: Disclaimer of Warranties. I UNDERSTAND THAT YOU EXPRESSLY DISCLAIM ALL WARRNTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THAT YOU NEITHER ASSUME NOR AUTHORIZE ANY PERSON TO ASSUME FOR YOU ANY LIABILITY IN CONNECTION WITH THE PURCHASE OF THE VEHICLE, except as otherwise provided in writing by YOU in an attachment to ths Agreement or in a document delivered to ME when the vehicle is delivered. See, See Richard Ferrante s Affdavit in Support of Motion for Partial Summary Judgment, Exhibit B, Purchase Agreement, Additional Terms and Conditions (Emphasis in Original). The above referenced purchase agreement was executed by the plaintiff and clearly provided that Ramp made no express waranties as to the vehicle and disclaimed all implied waranties. Additionally, the invoice provided to plaintiff by Ramp at the time of purchase also clearly disclaimed in all capital letter writing, though smaller than

the rest of the typed words of the agreement, the following: ALL WARRANTIES ON THIS VEHICLE ARE THE MANUFACTURER' THE SELLER (Ramp) HEREBY EXPRESSLY DISCLAIMS ALL WARRNTIES EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHATABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH THE SALE OF THE VEHICLE. THIS DISCLAIMER BY THE SELLER IN NO WAY AFFECTS THE TERMS OF THE MANUACTURR' S WARRANTY. See, See Richard Ferrante s Affdavit in Support of Motion for Partial Summary Judgment, Exhibit C, Invoice(Emphasis in Original). The manufacturer, GM waranted the vehicle pursuant to the terms of a new vehicle limited waranty which provided, among other things, that GM would pay the cost to repair defects in factory material or workmanship for a period of two years unlimited mileage. Neither Ramp nor GMAC provided any waranties as to the vehicle and specifically disclaimed all implied waranties. The plaintiff used the truck from approximately Januar 16, 2001 until July 6, 2002 in connection with its towing and collsion business by removing disabled vehicles from roadways. In July 2002, the vehicle was involved in an accident in Queens, New York. injuries resulted from the accident. The accident was allegedly the result of a failure of the steering components of the vehicle. Thereafter, the vehicle was towed to Ramp, where it stil remains, unrepaired by the defendants. Allegedly, when the vehicle could

not be repaired, GM offered the sum of $21 815.21 to repurchase the vehicle from plaintiff. However, plaintiff rejected the offer because plaintiff believed that such amount was insufficient and unfair. See Affdavit in Opposition to Motion For Summary Judgment of Adam Heller, President of the Plaintif Goodfellas, paragraphs 29-31. On or about April 28, 2003, plaintiff commenced the instant action alleging breach of contract and breach of express and implied waranty against defendants. Issue was joined as to defendants, GM, GMAC and Ramp on, or about June 3, 2003, June 25, 2003 and July 28, 2003, respectively. Discovery has been completed and the case has been certfied. Upon the instant application, defendants' move, pursuant to CPLR 3212, for an order granting parial summary judgment dismissing the plaintiff's complaint in its entirety as to GMAC and Ramp to the extent the complaint asserts a cause of action for breach of contract, or implied waranty and against GM to the extent it seeks to recover incidental and consequential damages. Although movant filed the instant motion after the time permtted by this Court following the filing of the Note of Issue expired, movant asserts that a Note of Issue has not been served on defendants. Plaintiff does not dispute that the Note of Issue was not served on defendants. Accordingly, movants have set for good cause for the delay. See, Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d725; Bril v City of New York, 2 NY3d 648; First Union Auto Fin., Inc., v. Donat, 16 AD3d 372; Milano v. George,

AD3d ;792 NYS2d 905. It is well settled that the proponent of a motion for summar judgment must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See, Winegrad v. New York Univ. Med. Center, 64 NY2d 851 853; Zuckerman v. City of New York 49 NY2d 557, 562. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. See, Winegrad v. New York Univ. Med. Center, supra, at p. 853. In support of their motion seeking parial summar judgment, defendants submit that plaintiff may not maintain any cause of action alleging breach of express, or implied waranty as against Ramp, or GMAC because neither Ramp nor GMAC made any waranties as to the vehicle and Ramp specifically disclaimed all implied waranties as to the vehicle. Breach of Express or Implied Warranty as to GMAC As to defendant, GMAC, it is undisputed that plaintiff, on Januar 16, 2001 executed a financing agreement with defendant, GMAC, and that Ramp thereafter assigned its interests pursuant to the Retail Installment Agreement to GMAC. See, Retail Installment Contract, Ferrante Affdavit, Exhibit D. Paragraph 4 of this Retail Installment Contract states as follows: WARRNTIES SELLER DISCLAIMS

Unless the Seller (Ramp) makes a written warranty, or enters into a service contract within 90 days from the date of this contract, the Seller makes no warranties, express or implied, on the vehicle, and there wil be no implied warranties of merchantabilty or of fitness for a particular purpose. This provision does not affect any waranties covering the vehicle that the vehicle manufacturer may provide. See, See Richard Ferrante s Affdavit in Support of Motion for Partial Summary Judgment, Exhibit D (Emphasis in Original) A waranty may either be express (UCC 313) or implied (UCC 2-314). However, in cases not involving personal injuries, a claim for breach of implied waranty, must have privity of contract. See, Hole v. General Motors Corp, 83 A. 2d 715. GMAC is not the manufacturer, nor the seller of the trck herein. There was no buyerseller relationship here, so any claims for breach of implied waranty against GMAC must be dismissed. See, Philp Silvershein Corp. v. S.A. Wald & Co., 12 N. 2d 256. Further, it is abundantly clear from the record herein that defendant, GMAC, made no express waranties. GMAC made no independent waranties as to the trck herein; furthermore, GMAC was not a pary to any transaction that would give rise to any implied waranties. Thus, defendants' motion seeking parial summar judgment dismissing plaintiff's cause of action asserting breach of express, or implied waranty as to defendant, GMAC is granted. Breach of Express or Implied Warranty as to Ramp In the instant matter, Ramp entered into a purchase agreement with the plaintiff. The purchase agreement, which was executed by the plaintiff, clearly provided that Ramp

made no express waranties as to the vehicle and disclaimed all implied waranties. See Ferrante s Affdavit, Exhibit B, paragraph 5. Additionally, the invoice provided to plaintiff by Ramp at the time of purchase also clearly disclaimed, in all capital letter writing, all waranties, express and implied, including any implied waranty of merchantability or fitness for a parcular purpose. It is well settled that waranty disclaimers are enforceable in New York. See N. 1' e.e. section 316; Lumbrazo v. Woodruff 256 NY 92. Based upon the papers submitted for this Court' s consideration, this Court finds that the purchase agreement, the retail installment contract and the invoice for the trck herein, all validly disclaimed all implied waranties on the par of the dealer, Ramp Chevrolet. The automobile dealer through the use of all capital letter writing and bold face headings for the numbered paragraphs, in multiple documents, conspicuously and clearly disclaimed both express and implied waranties. See, UCC 316. The waranty of merchantabilty was disclaimed because the writing was conspicuous and mentioned the word merchantabilty" in the disclaimer. See, UCC 316, 3-316(2); Zicari v. Harris Co., 33 A. 2d 17, 304 NYS 2d 918lv den d 26 NY2d 610; Carbo Industries Inc. v. Beeker Chevrolet, Inc., 112 AD2d 336. Thus, defendants' motion seeking parial summar judgment dismissing plaintiff' s cause of action asserting breach of express, or implied waranty as to defendant, Ramp is granted. Breach of Contract Against GM

It is well settled that a complaint for breach of contract must allege the provisions of the contract upon which the claim is based. See, Bomser v. Moyle, 89 AD2d 202; Shields v. School of Law of Hostra Univ., 77 AD2d 867. In this case, however, plaintiff has clearly failed to even allege that it was a pary to any agreement with GM. Therefore, as there is no contractual relationship between plaintiff and GM, plaintiff may not maintain a cause of action alleging breach of contract against GM. Incidental and Consequential Damages Plaintiff, in its complaint, seeks incidental and consequential damages it allegedly sustained as the result of the alleged breach of contract. It is well settled that where the contract is one for the sale of goods, as in the instant case, the Uniform Commercial Code authorizes the paries, as they did here, to limit the remedies available upon breach by excluding claims for consequential damages. See, UCC 2-719(3); Equitable Lbr. Corp. V. IPA Land Dev. Corp, 38 NY2d 516; Auburn Steel Co. V. Westinghouse Elec. Corp., 158 AD2d 938. Subdivision (3) of UCC section 2-719 provides: "Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." Clearly, consequential and incidental damages may be excluded in a contract in the absence of unconscionabilty. See, Mom s Bagels of New York v. Sig Greenbaum,

164 AD2d 820. In order to establish that the limitation of damages was unconscionable plaintiff must make "some showing of ' an absence of meaningful choice on the par of one of the paries together with the contract terms which are unreasonably favorable to the other par. '" See, Matter of the State of New York v. Avco Fin. Serv., 50 NY2d 383, 389 quoting Willams v. Walker Thomas Furniture, 350 F2d 445, 449 (D.C. Cir. 1965); see Master Lease Corp. v. Manhattan Limousine, 177 AD2d 85, 88-89. Whether a paricular clause can be said to have been unconscionable when it was made, is a question of law for the court (see, Uniform Commercial Code, ~ 2-302(1)) to be determned "in the light of the general commercial background and the commercial needs of the parcular trade or case." See, NY UCC ~ 2-302. In cases involving transactions of a commercial nature, unconscionabilty is rarely found. In fact, "when businessmen contract in a commercial setting, a presumption of conscionability arses. See, UCC ~ 302. Here the transaction was unquestionably commercial. Plaintiff is a corporation which at the time of the contract of sale, was operating a towing and collision business. No claim is made that the President of the plaintiff Corporation, Goodfellas, Adam Heller was inexperienced in transactions like the one in question. On the contrar, in an affidavit he states that he had been in the "towing business" for over 15 years. See Plaintif' s Affdavit in Opposition to the Motionfor Summary Judgment, paragraph 33. Moreover, plaintiff fails to allege in his complaint that he was unaware of the provisions

in the purchase agreement, invoice and the retail installment contract. The purchase agreement states: "I UNDERSTAND THAT YOU EXPRESSLY DISCLAIM ALL WARRNTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHATABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THAT YOU NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR YOU ANY LIABILITY IN CONNCTION WITH THE PURCHASE OF THIS VEHICLE, except as otherwise provided in writing by YOU in an attachment to this Agreement or in a document delivered to ME when the vehicle is delivered." See Ferrante Affdavit, Exhibit B. Mr. Heller s signature appears immediately beneath the certification incorporating this statement. Thus, it appears conclusively that plaintiff was fully cognizant of the waranty provisions and limitations. On this record, in view of the nature of plaintiff's towing and collsion business the transaction involved, the fact that plaintiff had available other sources for purchasing similar equipment, and the experience of its president, this Court finds that plaintiff was not put in a bargaining position where it lacked a meaningful choice; nor was the disclaimer of incidental and consequential damages unreasonably favorable to the defendant. See, Matter of State of New York v. Avco Fin. Servo of N.Y., 50 NY2d 383. Accordingly, this Court finds that plaintiff may not maintain a cause of action seeking incidental or consequential damages as a matter of law. It is well settled that once a prima facie showing has been made by the proponent

of a motion for summar judgment, the burden shifts to the pary opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a tral of the action. See Zuckerman v. City of New York, supra, 49 NY2d at p. 562. Defendants have submitted sufficient evidence to make prima facie showing of summar judgment. Plaintiff, in opposition, fails to submit any proof in admissible form as to the existence of any agreement between plaintiff and GM. Plaintiff's affidavit in opposition baldly re-asserts the allegations of the Complaint that GM' s written limited waranty on the vehicle created privity of contract between GM and the plaintiff. It is well established that the burden of a pary opposing a motion for summar judgment is not met merely by repeating the allegations contained in the pleadings. See Indig. V. Finkelstein, 23 NY2d 728, 729. Moreover, the law is clear that since there is no privity of contract between a manufacturer of personal property, GM herein, and thid persons, the plaintiff, (see, Chysky v. Drake Brothers Co., 235 NY 468 472) a cause of action for the breach of implied waranty may not be maintained. See, Miler v. General Motors Corp., 99 AD2d 454, aff'd 64 NY2d 1081. Plaintiff further submits, in opposition to defendants' motion for summar judgment, that due to the smaller font size of the disclaimer contained in the invoice provided to plaintiff by Ramp, the disclaimer is unenforceable. This argument is unavailing. It is abundantly clear and undisputed in the record that plaintiff was provided

at least three different documents (the invoice, the purchase agreement and the retail installment agreement) in which Ramp disclaimed all waranties. Moreover, even assuming arguendo that the disclaimer written in all capital letters on the invoice is invalid, ths Court notes that plaintiff does not contest that the disclaimers contained in the remaining documents are valid and enforceable. Plaintiff's opposition to defendants motion for summar judgment does not challenge the enforceabilty of Ramp disclaimers of waranties. With these guidelines in mind, and giving the non-movant, plaintiff, the benefit of every favorable inference, (See, Robinson v. Strong Memorial Hosp., 98 AD2d 976; see also, Blake-Veeder Realty, Inc. v. Crayford, 110 AD2d 1007), it is this Court' conclusion that plaintiff's failure to produce evidentiar proof in admissible form establishing the existence of material questions of fact, warants a grant of paral summar judgment in defendants' favor. Therefore, it is hereby ORDERED, the portion of the motion on behalf of defendants, GMAC and Ramp, for summar judgment is granted and the plaintiff's complaint against GMAC and Ramp is severed and dismissed in its entirety. It is furter ORDERED, the portion of the motion for parial summar on behalf of defendant GM, is granted to the extent that the plaintiff s complaint which asserts causes of action against GM for breach of implied waranty, breach of contract and seeks incidental and consequential damages is severed and dismissed

~~~ Goodfellas V General Motors Corp. et at. This constitutes the decision and order of the court. Dare ' 2005 PH COVELLO, J. S. C. EN'tEf\EO Su\. 1 G 1 COUN1'l 11\ I\SS K'SOff\Ce. cou 1" c\.er