North Town Auto Rental, Inc. v. Sportservice Corp.

73 A.D.2d 1045, 425 N.Y.S.2d 427, 1980 N.Y. App. Div. LEXIS 10005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1980
• Status: Published

Opinions

Order reversed, with costs, and motion denied. Memorandum: Defendants appeal from an order granting partial summary judgment on the issue of liability to the plaintiff in an action for specific performance of a contract or in the alternative for damages for breach of the contract for the sale of two used "bubble” air support shelters. Plaintiff had responded to defendants’ advertisement which offered the two structures for sale at a price of $75,000. On October 27, 1978, after some negotiations, plaintiff offered $25,000 for both shelters and defendants’ representative, Ronald A. Chapin, said "you’ve, got a deal.” Plaintiff gave defendants a check in the amount of $1,000 as a down payment on which was written: "deposit, 2 air bubbles, 55,000 sq. ft.” and took back a receipt stating: "received $1,000 on deposit for purchase of 2 air bubbles. Total purchase price is $25,000.” Chapin states in an affidavit that prior to the oral agreement there was no discussion relating to warranties but that after the exchange of the check and receipt, "plaintiff then injected new conditions and destroyed any meeting of the minds that existed” by requiring "representations and warranties relating to the structures” and that he "told [plaintiff that he] would confer with [defendants’] legal department and have it prepare a contract, and we would then communicate with plaintiff by mail.” Plaintiff does not dispute these allegations. No written contract was ever forwarded. Defendant ultimately sold the "bubble” structure to a third party for a higher price and plaintiff sued. The order of Special Term granting partial summary judgment should be reversed. The record demonstrates that there were unresolved questions of fact sufficient to preclude summary judgment on the issue of defendants’ liability. (See Created Gemstones v Union Carbide Corp., 47 NY2d 250.) If, as defendants claim, the oral agreement of sale was "as is, where is”, the record presents triable issues as to whether plaintiff repudiated that contract by injecting new conditions and by requiring representations and warranties where none had previously been asked for or given (see, generally, 10 NY Jur, Contracts, § 395; Uniform Commercial Code, § 2-610), or whether the parties, having agreed to the sale on an "as is, where is” basis, mutually abandoned that understanding in contemplation of a new written contract, to be prepared by defendants’ legal department, containing warranties to be agreed upon (see Green v Doniger, 300 NY 238, 245; Matter of Schanzer, 7 AD2d 275, 278, affd 8 NY2d 972). All concur, except Doerr and Moule, JJ., who dissent and vote to affirm the order, in the following memorandum.