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Shuldman v. DaimlerChrysler Corp.11/3/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Argued - October 7, 2003
DECISION & ORDER
(Index No. 13033/00)
In an action, inter alia, to recover damages for breach of written and implied warranties pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 USC § 2301 et seq.), the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated December 12, 2002, as granted those branches of the defendants' motion which were for summary judgment dismissing the third cause of action in the complaint based on the remedy of revocation of acceptance and the claims for incidental damages, and the defendants cross-appeal from stated portions of the same order.
(*2) ORDERED that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 , ); and it is further,
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion which were for summary judgment dismissing the third cause of action based on revocation of acceptance, and dismissing the claim for incidental damages insofar as asserted against the defendant East Hills Chrysler Plymouth, Inc., and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The plaintiffs purchased a new automobile from the defendant East Hills Chrysler Plymouth, Inc. (hereinafter East Hills), an authorized dealer of the defendant manufacturer DaimlerChrysler Corporation (hereinafter Daimler). Two years later, they commenced this action against East Hills and Daimler pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (hereinafter the MMWA) (see 15 USC § 2301 et seq.), alleging, inter alia, breach of written and implied warranties and revocation of acceptance.
The Supreme Court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the revocation of acceptance cause of action. Initially, the plaintiffs may assert a cause of action pursuant to the MMWA against Daimler for breach of its written warranty as the statute abolished the requirement of privity with respect to claims by a consumer against a warrantor (see Abraham v. Volkswagen of America, 795 F2d 238, 248 [2d Cir 1986]; 15 USC §§ 2301, 2310 ). However, Daimler issued a "limited," rather than a "full," written warranty, and the MMWA is silent as to the remedies for breach of a limited written warranty (cf. 15 USC § 2304 [a full warranty must include a choice of a refund or replacement without charge for a defective product]). Accordingly, the court must look to State law to determine the plaintiffs' entitlement to damages or other legal or equitable relief (see 15 USC § 2310 ; Murphy v. Mallard Coach Co., 179 AD2d 187; MacKenzie v. Chrysler Corp., 607 F2d 1162, 1166 [5th Cir 1979]; Novosel v. Northway Motor Car Corp., 460 F Supp 541, 545 [NDNY 1978]).
We conclude that the absence of privity does not bar application of the remedy of revocation of acceptance for breach of a limited written warranty under the MMWA (see DiCintio v. Daimler-Chrysler Corp., 282 AD2d 276, revd on other grounds 97 NY2d 463; Gochey v Bombardier, Inc., 153 Vt 607, 610-613, 572 A2d 921, 923-924; Ventura v Ford Motor Corp., 180 NJ Super 45, 65-66, 433 A2d 801, 811-812; cf. Funk v. Montgomery AMC/Jeep/Renault, 66 Ohio (*3)App 3d 815, 586 NE2d 1113). Since the MMWA makes a warrantor directly liable to a c
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