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Shuldman v. DaimlerChrysler Corp.11/3/2003
onsumer for breach of a written warranty, it would be inconsistent with the purpose of the statute to impose a privity requirement with respect to the remedies for that breach. Furthermore, a buyer may obtain a refund of the purchase price from a manufacturer for breach of an express warranty, without regard to privity, under provisions of the Uniform Commercial Code (see UCC 2-714 , UCC 2-719 ; Murphy v. Mallard Coach Co., supra; Durfee v. Rod Baxter Imports, 262 NW2d 349 [Minn]). Given the remedial purposes of the MMWA, we conclude that the plaintiffs' cause of action for revocation of acceptance should be reinstated insofar as asserted against Daimler.
The plaintiffs, at the time of their purchase of the automobile, also purchased a service contract from East Hills. Pursuant to 15 USC § 2308(a), a "supplier," such as East Hills, may not disclaim any implied warranty to a consumer if, at the time of the sale, or within 90 days thereafter, the "supplier" entered into a service contract with the consumer. Therefore, East Hills may not disclaim the implied warranty of merchantability, and the plaintiffs have asserted a cause of action to recover damages for breach of implied warranty against it pursuant to the MMWA. State privity laws apply with respect to a claim for breach of an implied warranty under the MMWA (see Abraham v. Volkswagen of America, supra). However, as there is no dispute that the plaintiffs and East Hills are in privity, the Supreme Court erred in dismissing the cause of action for revocation of acceptance insofar as asserted against East Hills.
The Supreme Court properly dismissed the plaintiffs' claim for incidental damages insofar as asserted against Daimler. The MMWA does not prohibit a limitation on such damages in a written warranty (see 15 USC §§ 2304 , 2311 ), and, under state law, the test is whether the limitation is unconscionable (see UCC 2-719 ). Contrary to the plaintiffs' contention, we conclude that the limitation on incidental damages in Daimler's warranty is not unconscionable.
The Supreme Court erred, however, in dismissing the plaintiffs' claim for incidental damages insofar as asserted against East Hills. East Hills was precluded from disclaiming an implied warranty of merchantability, and the plaintiffs may recover incidental damages for breach of an implied warranty under UCC 2-714 and UCC 2-715.
The parties' remaining contentions are without merit.
RITTER, J.P., GOLDSTEIN, TOWNES and MASTRO, JJ., concur.
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