Thomason v. Northport Ford, Inc.

43 A.D.3d 817, 840 N.Y.S.2d 871

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 4, 2007
• Status: Published

Opinion

In an action, inter aha, to recover damages for breach of warranty and violation of General Business Law § 198-b, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J), dated January 10, 2006, as granted that branch of the defendant’s motion which was for summary judgment dismissing the first and sixth causes of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the first and sixth causes of action is denied.

Contrary to the Supreme Court’s determination, the defendant failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Triable issues of fact exist as to whether the defendant had a reasonable opportunity to correct the alleged defect and whether the defect continues to exist (see General Business Law § 198-b [c]).

The plaintiffs’ remaining contention is improperly raised for the first time on appeal (see Charles v Jamaica Hosp., 30 AD3d 459 [2006]). Miller, J.P, Crane, Ritter and Lifson, JJ., concur.