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Christensen v. Fashion-Fain Homes12/15/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
MEMORANDUM-DECISION AND ORDER
The court has before it motions from both defendants in this matter, seeking summary judgment dismissing the plaintiff's Complaint in its entirety. The plaintiff has cross-moved for attorney's fees alleging the motions made by the defendants are frivolous in nature. It is noted that no discovery has been done in this matter and that one of plaintiff's main arguments in opposition to the motion is that it is premature.
The plaintiff in this matter purchased a used manufactured home in September of 2003, from Fashion-Fain Home, Inc. (hereinafter "Fashion-Fain"), for the sum of $45,000.00. The Defendant, Champion Home Builders, Co., is the manufacturer of the home in question (hereinafter "Champion"), and Fashion-Fain is an authorized dealer of Champion. The home was not assembled when, before purchase, the plaintiff inspected it in or about early September, 2003. It had been used as a model at the Fashion-Fain site. The plaintiff alleges that Fashion-Fain representatives told her the home had only been apart about three months but she subsequently discovered the home had been apart for years. After delivery of the home in late October 2003, it became apparent that the home had been severely water-damaged and had mildew and mold.
The first cause of action alleges Fashion-Fain breached its contract with plaintiff and the second cause of action alleges Fashion-Fain breached its warranty provided the plaintiff. The third and fourth causes of action allege breach of the express manufacturer's warranties against defendant Champion. The tenth cause of action alleges breach of contract against both defendants. It is undisputed that the contract Fashion-Fain entered into with the plaintiff indicated the home was "sold as is' including only manufacturer's warranty" with the defendant Champion's limited warranty annexed. Fashion Fain, however, also provided a written definition of "as is" for purposes of the contract entered into with the Plaintiff. (Exhibit B, Champion motion papers; Exhibit D, Fashion Fain motion papers) Champion and Fashion-Fain rest on the premise that the plaintiff refused to let them repair or correct the purported defects within the time frame of the one-year express warranty. They submit that there is no question of fact that the plaintiff refused to allow them to make the repairs within the one-year time frame and that the documentary evidence they submit rebuts the vague conclusorary allegations of plaintiff's reply papers.
The defendants cite Hole v. General Motors Corp., 83 AD2d 715 (3rd Dept, 1981). In Hole, the proof was undisputed that the plaintiff flatly refused to allow repair efforts to be made by the manufacturer. "These offers were flatly rejected by plaintiff who advised GM that he was rescinding the entire transaction and that GM could either provide him with a new Safari or refund to him in cash the entire purchase price. In declining to accept either of plaintiff's alternatives, GM indicated its continued willingness to make all necessary repairs at plaintiff's earliest convenience and at GM's expense. Plaintiff again rejected the offer and returned the vehicle to Morris." Hole, supra at p. 716.
Here, the plaintiff points out an ambiguity in Fashion-Fain representative Jack Freer's affidavit. Mr. Freer alleges the plaintiff refused to let them make repairs during the one year time frame, but then acknowledges a walk-through with her at the residence on or about November 3, 2003. (Exhibit C, Gold's af
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