Opinion
FSTCV176031498S
08-29-2019
Fred COHN v. MARINEMAX NORTHEAST, LLC
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION AND FACTUAL SUMMARY
By way of factual background, the plaintiff Fred Cohn purchased the subject new 2015 Sailfish Yamaha 270CC fishing boat after attending a boat show at the Norwalk Cove Marina in Norwalk, Connecticut in September 2015. The plaintiff made his decision to purchase the boat following a lengthy discussion with the defendant’s representative, Kevin Graffignino. The defendant MarineMax, Northeast, LLC (MarineMax), is a Delaware corporation in the business of selling and servicing boats and is an authorized dealer for Sailfish. The purchase agreement described the boat as a "New 2015 Sailfish Yamaha 270CC." In his complaint the plaintiff alleges that the boat was not in fact NEW as represented because prior to delivery, the defendant had replaced seat cushions on the boat without informing him. The plaintiff alleges that the defendant improperly performed the seat cushion repairs on the captain’s chair, or helm seat and because the defendant failed to inform the plaintiff of the repair at any time prior to his purchase. The plaintiff further alleges that after less than six hours of operation following his acceptance of delivery of the boat, the captain’s chair suddenly broke and detached from its base while he was operating the boat. Unsatisfied with the defendant’s response to the situation, the plaintiff notified the defendant on October 6, 2016, that he was revoking his acceptance of the boat pursuant to N.Y.U.C.C. 2-607(3)(a) and demanded a refund of the amount he paid for the boat. Following the defendant’s refusal to issue a refund, the plaintiff initiated this action.
The plaintiff commenced the above captioned action against MarineMax, Northeast, LLC by writ, summons and complaint returnable to this court on April 4, 2017. The complaint sounds in five counts: First Count- Fraud, Second Count- Breach of Express Warranty, N.Y.U.C.C. § 2-313, Third Count- Breach of Implied Warranty, N.Y.U.C.C. § 2-314, 2-315, Fourth Count- Breach of Implied Covenant of Good Faith and Fair Dealing, Fifth Count- Deceptive Practices, Section 349 N.Y. General Business Law/Consumer Protection Act.
Pursuant to Practice Book § § 17-44 et seq., and 11-10, the defendant, MarineMax Northeast, LLC ("MarineMax" or "Defendant"), has filed a motion for summary judgment as to all counts of the complaint. In the motion for summary judgment the defendant argues the subject Purchase Agreement, dated November 16, 2015 and executed November 23, 2015 ("Purchase Agreement") (1) disclaimed all express and implied warranties concerning defendant MarineMax; (2) the explicit terms of the Purchase Agreement permit design changes and modifications and therefore, undermine any allegations that defendant made false affirmations of fact concerning the condition of subject vessel; (3) plaintiff’s claims under New York Gen. Bus. Law § 349 and breach of implied covenant of good faith are improper and must therefore be dismissed. For these reasons, the defendant MarineMax claims that it is entitled to summary judgment as a matter of law on all five counts of the plaintiff’s complaint.
In support of its motion for summary judgment the defendant has submitted copies of the subject purchase agreement, dated 11/16/15, Warranty registration, dated 6/9/16, Predelivery checklist- PDI #37369323, deposition of Fred Cohn, July 24, 2018, Affidavit of Victoria Basile, dated March 22, 2019, deposition of Captain Andrew Cook, August 29, 2018, deposition Mark D. Lieberman, June 13, 2018, deposition Victoria Basile, June 1, 2018, 9/1-2/2016 Cohn-Lieberman email exchanges, notice of service of process/complaint, Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464 (2010), Manufacturer’s Statement of Origin Oct. 2014.
The court finds the following facts to have been established and that said facts are relevant to the court’s consideration of defendant’s motion.
In September 2015, plaintiff attended a boat show at the Norwalk Cove Marina, in Norwalk, Connecticut and discussed the potential purchase of a new 2015 Sailfish Yamaha 270CC fishing boat with a representative of the defendant MarineMax. Their conversation included a discussion of the characteristics of the boat. Following this discussion, the plaintiff signed a purchase agreement with MarineMax for the purchase of a new 2015 Sailfish Yamaha 270CC fishing boat ("Vessel") manufactured by Seminole Marine on November 16, 2015. Mr. Cohn read through the various terms of the purchase agreement, including the terms relating to the sale, agreements and limitations of warranties, prior use, and model and design changes. The purchase agreement included a warranty between himself and the manufacturer, Seminole Marine, Inc. The plaintiff completed the warranty registration that contained warranty information and representations made directly by the manufacturer, Seminole Marine, Inc. to him. The Purchase Agreement contains a disclaimer of all warranties by the seller. Delivery was scheduled for May 2016 in Rhode Island.
Shortly after the plaintiff executed the purchase documents, MarineMax received correspondence from Seminole Marine, Inc. concerning required replacement of yellowing seat cushions on certain boats due to an industry-wide problem. The plaintiff’s boat was among the boats with yellowing cushions. Pursuant to Work Order #127107 dated December 7, 2015, an agent of MarineMax replaced the seat cushions on the subject boat. The plaintiff was not advised of this pre-delivery seat cushion replacement and the boat was delivered to plaintiff in June 2016, in Warwick, Rhode Island.
On or about August 8, 2016, plaintiff contacted Seminole Marine, Inc. to complain that the helm seat had suddenly become dislodged while he was operating the boat. Seminole Marine, Inc. referred the plaintiff to MarineMax. The subject helm seat was one of the seats for which Marine Max had replaced the cushions pursuant Seminole Marine, Inc.’s directive. Between August 8, 2016 and September 2016, Mark Lieberman, as the General Manager of the MarineMax Lindenhurst and Copiague, New York locations, communicated with plaintiff whether to repair the helm seat or upgrade the subject boat. The plaintiff refused to discuss repair of the boat and did not agree with the amount that the defendant offered as a credit to upgrade to a more expensive boat. Instead, he insisted that MarineMax provide him with a new version of the same boat which he purchased the prior September. The plaintiff was not satisfied with the response of MarineMax and on October 6, 2016 he notified MarineMax that he was revoking his acceptance of the boat pursuant to N.Y.U.C.C. 2-607(3)(a) and demanded a full refund of the purchase price. Plaintiff’s expert, Captain Andrew J. Cook testified in his deposition that the MarineMax had done the seat repairs improperly but that the subject seat could be repaired at minimal cost and that these repairs would both restore the boat to its full capabilities and would also restore the value of the boat. The plaintiff has refused to permit MarineMax or any other entity to make such repairs.
In addition to the depositions of the plaintiff, Mr. Lieberman, Ms. Basile and Captain Cook, the referenced deposition transcript excerpts and affidavits, the defendant has produced the subject purchase agreement, Sailfish Boats Manufacturer’s Statement of Origin which identifies the defendant MarineMax as the seller of the subject boat, the Pre-Delivery Inspection (PDI) form and a copy of the decision of the court in Kraft v. Staten Island Boat Sales, Inc., 715, F.Supp. 464, 2010 LEXIS 50484 (May 17, 2010).
The parties have also referred to the following documents as relevant to the court’s consideration of the defendant’s motion
B. Purchase Agreement- Relevant Terms
The plaintiff entered into a purchase agreement with defendant on or about November 16, 2015. The Purchase Agreement contains the following relevant provisions, limiting any warranty to the manufacturer as stated:
MANUFACTURER’S WARRANTY. The boat motor and accessories sold pursuant to the Agreement are only subject to manufacturer’s warranties, if any, except as otherwise expressed [sic] provided in this agreement.
The Purchase Agreement also contains a disclaimer of warranties clause which states as follows:
DISCLAIMER OF WARRANTIES. THE BOAT MOTOR AND ACCESSORIES BEING PURCHASED PURSUANT TO THIS AGREEMENT ARE SOLD BY SELLER "AS IS" AND SELLER MAKES NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, unless Seller gives Buyer a written warranty on its own behalf or Seller enters into a service contract in connection with this sale or within days of sale. If Seller give Buyer a written warranty on its own behalf or enters into a service contract in connection with this sale or within 90 days of sale, then any implied warranty shall be limited in duration of Seller’s written warranty or service contract. IN ALL CASES, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE BREACH OF THIS AGREEMENT, ANY EXPRESS OR IMPLIED WARRANTY OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The Purchase Agreement also includes the following provisions concerning prior use and model/design changes:
PRIOR USE. Buyer acknowledges that this is a new boat being purchased pursuant to this Agreement may have hours of use prior to delivery to Buyer.
This use may be the result of pretesting of the boat by the manufacturer, Seller, or potential buyers, as well as on-water transportation of the boat to the delivery site.
MODEL OR DESIGN CHANGES. Buyer understands that the manufacturer retains the right to make changes in the model or design of its new boats as well as its accessories, at any time. Buyer agrees that any such change will not obligate the Seller or the Manufacturer to make corresponding changes in the particular boat motor and/or accessories covered by this agreement either before or after the delivery thereof to Buyer.
Plaintiff’s signature appears on the line designated for the buyer. See Exhibit C. The Purchase Agreement also includes plaintiff’s Warranty Registration, which states:
THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER REMEDIES AND WARRANTIES EXPRESSED AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS. THE LAW AND STATUTES OF THE GOVERNING STATE WHEREIN MANUFACTURER’S LIMITED WARRANTY, THIS WARRANTY SHALL BE MODIFIED TO BE IN COMPLIANCE THE GOVERNING STATUTES STATUTORY PROVISIONS. THE PURCHASER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO HIM OR HER WITH RESPECT TO THE QUALITY AND FUNCTION OF THE BOAT . ANY CONSEQUENTIAL DAMAGES WHICH MAY BE INCURRED ARE EXCLUDED AND PURCHASER’S REMEDY IS LIMITED TO REPAIR OR REPLACEMENT OF ANY PART(S) JUDGMENT DEFECTIVE BY SEMINOLE MARINE. IN STATES WHICH PROHIBIT SUCH LIMITATIONS OR EXCLUSIONS SEMINOLE’S LIMITATIONS OR EXCLUSIONS DO NOT APPLY DUE TO APPLICABLE STATUTORY PROHIBITIONS OF THE GOVERNING STATE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
The warranty registration further notes that:
All repairs and/or replacements will be made by an authorized SAILFISH Dealer, or at the option of SEMINOLE, at the Sailfish plant. If the repairs are of such nature that the warranty must be performed at the SAILFISH plant, the owner shall pay for transportation costs to and from the SAILFISH plant. An authorized SAILFISH Service Representative must approve any repairs and replacements in advance.
II. APPLICABLE LAW AND ANALYSIS
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253 (2007).
"Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).
If the movant’s affidavits and other evidence fails to deal with any of the factual issues contested in the pleadings, those factual issues remain unresolved and thereby prevent the Court from granting the summary judgment motion. Id. ; Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488 (1971). The failure to address each and every genuine issue of material fact contested in the pleadings is fatal to the motion for summary judgment. Mingachos, supra, 196 Conn. at 111; Fogarty, supra, 193 Conn. at 445. Litigants have a constitutional right to have issues of fact decided by a jury. Ardoline v. Keegan, 140 Conn. 552, 555 (1954). "[A]s we have noted before, a party has the same right to submit a weak case as he has to submit a strong one." Hunter v. Healey Car Truck Leasing, Inc., 41 Conn.App. 347, 350 (1996). The failure to permit even a very weak case to go to the jury constitutes "plain error." Id.
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 563-64 (2008).
"A fact is material if its existence would make a difference in the result of a case." Pane v. City of Danbury, 267 Conn. 669, 675 (2004). (Internal quotations omitted). Vogt v. Purcell, No. CV 030196844, 2004 WL 2167013, at *1 (Conn.Super.Ct. Sept. 8, 2004). Given the foregoing, the Defendant’s Motion for Summary Judgment must be denied.
As a threshold issue, the court notes that the plaintiff argued that the defendant’s motion for summary judgment is procedurally defective because the defendant failed to submit sworn or certified exhibits as required by Practice Book Section 17-35. The defendant has subsequently cured this defect by affidavits and certified transcripts of deposition testimony.
The following analysis of the court in the case of Salko Farm & Stable, LLC v. Baus, 2007 WL 1976241 (May 24, 2007), is instructive procedurally. In that case, the court noted,
Before beginning an analysis of whether there exists a genuine issue of material fact between the parties as required, the court notes that the defendants seek dismissal of the complaint for failure to state a claim as a matter of law regarding several counts.
Our Supreme Court recently clarified the case law concerning whether a summary judgment motion may be used to challenge the legal sufficiency of a pleading in addition to a motion to strike. "With these authorities in mind, we conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading ... If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed. See Practice Book § 10-7 (filing of answer constitutes waiver of right to file motion to strike complaint). It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint ... Thus, failure by the defendants to demur to any portion of the ... complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted ... Moreover, this court repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). In that case, the Supreme Court also stated that "we will not reverse the trial court’s ruling on a motion for summary judgment that was used to challenge the sufficiency of the complaint when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice." Id., at 402.
The plaintiff did not object to or address the defendants’ usage of the motion for summary judgment for this purpose. Thus, the court deems it appropriate to consider the defendants’ usage of the motion for this purpose. The court will, therefore, proceed to consider the merits of the parties’ arguments.
A. Express and Implied Warranties- Effect of Written Disclaimers
The plaintiff alleges that the defendant has breached express and implied warranties to the extent that MarineMax described the subject boat as "new" at the time of purchase. It is acknowledged that the manufacturer ordered the defendant seller to replace the seat cushions which were supplied with the boat because they were subject to fading. The manufacturer supplied new seat cushions which the defendant seller installed in December 2015. Following the replacement of the seat cushions, the plaintiff took delivery of the boat in June 2016 in Warwick, Rhode Island. The plaintiff claims that the boat was not "new" as warranted because the manufacturer had supplied replacement seat cushions which the defendant installed prior to delivery without advising him. After less than six hours of engine use the captain’s chair or helm seat, where the plaintiff was seated, broke and detached from the base causing the plaintiff to fall. The parties discussed a resolution of the issue over the ensuing weeks. Ultimately, the plaintiff refused the defendant’s offers to repair the seat or upgrade the boat to a new model.
The defendant alleges that the Purchase Agreement executed on or about November 23, 2015, by the plaintiff disclaimed all express and implied warranties which the plaintiff could assert regarding defendant MarineMax. In addition, the warranty which the plaintiff registered with the manufacturer specifically states that no representations were made concerning the quality or function of the boat.
According to the Purchase Agreement, New York law governs any disputes regarding the purchase of the subject boat. Citing New York statutes and relevant case law, the defendant argues that under N.Y.U.C.C. § 2-313, "[i]n order to demonstrate that an express warranty was created under New York law, a plaintiff must prove that the statement falls within the definition of a warranty, that [he or] she relied on it, and that it became part of the basis for the bargain." Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, 473 (S.D.N.Y. 2010) (quoting Daley v. McNeil Consumer Prods., Co., 164 F.Supp.2d 367, 377 (S.D.N.Y. 2001)). In order "[t]o prevail on a claim of breach of express warranty a plaintiff must show an affirmation of fact or promise by the seller, the natural tendency of which was to induce the buyer to purchase and that the warranty was relied upon." Factory Assocs. & Exps., Inc., v. Lehigh Safety Shoes Co., 382 Fed.Appx. 110, 111-12 (2d Cir. 2010) (internal quotations and citation omitted). See also Reed v. Pfizer, 839 F.Supp.2d 571, 578 (E.D.N.Y. 2012).
N.Y.U.C.C. Section 2-316 provides that implied warranties can be excluded by conspicuous writing. See id., 2-316(2).
A clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type of color. Whether a term or clause is "conspicuous" or not is for decision by the court.Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, *472 (citing N.Y.U.C.C. § 1201(10)). Additionally, disclaimer of an implied warranty requires that the statement specifically include the term merchantability.
The Purchase Agreement between Plaintiff and Defendant explicitly disclaims all warranties:
DISCLAIMER OF WARRANTIES. THE BOAT MOTOR AND ACCESSORIES BEING PURCHASED PURSUANT TO THIS AGREEMENT ARE SOLD BY SELLER "AS IS" AND SELLER MAKES NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, unless Seller give Buyer a written warranty on its own behalf or Seller enters into a service contract in connection with this sale or within 90 days of sale. If Seller give Buyer a written warranty on its own behalf or enters into a service contract in connection with this sale or within 90 days of sale, then any implied warranty shall be limited in duration of Seller’s written warranty or service contract. IN ALL CASES, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE BREACH OF THIS AGREEMENT, ANY EXPRESS OR IMPLIED WARRANTY OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The defendant argues that in this case, as in Kraft, "[t]he disclaimer provision meets the standards required by the U.C.C. to waive the implied warranties of merchantability and fitness for a particular purpose" as well as express warranties concerning seller, MarineMax. Id. Specifically, the words "MERCHANTABILITY" and "FITNESS FOR A PARTICULAR PURPOSE" are conspicuously provided in the written disclaimer in all capital letters. Based on the court’s review of the subject Disclaimer of Warranties, the court concludes that the form of the disclaimer satisfies the requirement that the bold typeface text in upper case format which is larger the size used in the body of the document provided sufficient notice to the consumer/purchaser of the limitation of warranty. Furthermore, the language itself is a clear communication of the dealer’s disclaimer. The plaintiff has acknowledged in his deposition that he read the disclaimer of Warranty. The court thus concludes that, like the plaintiff in Kraft v. Staten Island Boat Sales, Inc., supra, the plaintiff herein cannot reasonably contend that this disclaimer fails to meet the provisions of the N.Y.U.C.C. to waive express and implied warranties.
Additionally, plaintiff’s Warranty Registration, set forth below, made with the manufacturer, Seminole Marine, Inc., included limited warranties, and clearly notes that no representations were made to plaintiff regarding the quality and function of the vessel.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER REMEDIES AND WARRANTIES EXPRESSED AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS. THE LAW AND STATUTES OF THE GOVERNING STATE WHEREIN MANUFACTURER’S LIMITED WARRANTY, THIS WARRANTY SHALL BE MODIFIED TO BE IN COMPLIANCE THE GOVERNING STATUTES STATUTORY PROVISIONS. THE PURCHASER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO HIM OR HER WITH RESPECT TO THE QUALITY AND FUNCTION OF THE BOAT. ANY CONSEQUENTIAL DAMAGES WHICH MAY BE INCURRED ARE EXCLUDED AND PURCHASER’S REMEDY IS LIMITED TO REPAIR OR REPLACEMENT OF ANY PART(S) JUDGMENT DEFECTIVE BY SEMINOLE MARINE. IN STATES WHICH PROHIBIT SUCH LIMITATIONS OR EXCLUSIONS SEMINOLE’S LIMITATIONS OR EXCLUSIONS DO NOT APPLY DUE TO APPLICABLE STATUTORY PROHIBITIONS OF THE GOVERNING STATE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
The defendant argues that the disclaimer by the defendant MarineMax renders the plaintiff’s allegations concerning breach of express and implied warranties ineffective as a matter of law. The explicit terms of the Purchase Agreement indicate that all express and implied warranties were disclaimed concerning defendant MarineMax and that the sole warranties, if any, were those of the manufacturer. Furthermore, the explicit terms of the Warranty Registration stipulate that no additional representations of fact were made to plaintiff with regard to the quality of function of the boat. In support of its argument the defendant relies on the case of Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, 2010 U.S. Dist. LEXIS 50484 (May 17, 2010). In that case, the court granted to seller’s motion for judgment on the pleadings in full and denied the manufacturer’s motion for summary judgment in part, concluding that the buyer’s claim for breach of implied warranty and violation of the Magnuson-Moss Warranty Act against the manufacturer had to be decided by the trier of fact. The court in Kraft, supra, specifically found, inter alia, that the Pre-Delivery Inspection Report (PDI) did not create an express warranty.
B. Count One- Plaintiff’s Fraud Claim
In count one of his complaint the plaintiff alleges that the oral and written statements by MarineMax were false and were either known to be false or made carelessly without regard to whether they were false, that he was induced to rely on these statements in order to complete the purchase and that on that basis he tendered the purchase price which reflected the purchase. of a new vessel. The plaintiff alleges that the seller misrepresented the condition of the subject boat as new when it had actually replaced the defective cushions. He alleges that these repairs, which it made to a defective condition on the boat, rendered the boat vastly different than represented by the seller at the time of purchase. He further alleges that because of the seat cushion replacement changes and "reinstallation of the helm seat made to the vessel as set forth above, the boat was not "new" as that phrase is reasonably understood. Accordingly, the plaintiff maintains that the defendant fraudulently misrepresented its true condition by its failure to disclose it in order to induce him to accept the vessel and complete the purchase. In further support of his allegations, the plaintiff alleges that the subject Purchase Agreement affirmatively describes the boat that the plaintiff purchased as NEW. The plaintiff understood that the boat he purchased was new as a result of the statement on the purchase agreement and the oral statements made to him by representatives of the defendant.
The plaintiff’s evidence, viewed in the light most favorable to him, establishes that (1) in December 2015, the manufacturer identified several boats that had defective cushions, one of which was the boat purchased by the plaintiff, (2) the manufacturer provided replacement cushions for the plaintiff’s boat to the defendant who installed them prior to delivery, (3) the defendant did not inform the plaintiff of the cushion replacement and therefore, the plaintiff was unaware that the cushions had been replaced, (4) the plaintiff took delivery of the boat in Warwick, Rhode Island on June 6, 2016. (5) At some point after taking delivery of the boat, the helm seat disengaged from the deck while the plaintiff was operating the boat, causing him to fall. (6) On August 8, 2016, the plaintiff contacted the manufacturer regarding this problem with the helm seat on his boat and was referred to the defendant who offered to repair or upgrade the boat. The plaintiff was not satisfied with the defendant’s offer and insisted that the defendant must provide him with a replacement vessel. The evidence submitted in connection with the subject motion established that the defendant used the wrong sealant when it installed the leaning post, or "captain’s" seat following its replacement of the seat cushions on the boat. The defendant offered to repair this problem or to provide a credit to the plaintiff toward the purchase of an upgraded boat. The plaintiff has refused both offers. He has revoked his acceptance and demanded a refund and other damages as alleged in his complaint.
In support of the motion for summary judgment on the fraud count, the defendant contends that the following provisions in the purchase agreement shield it from the plaintiff’s fraud claim. First, MarineMax relies on a provision requiring the buyer to acknowledge that the Defendant might make changes to a model design after the buyer has purchased that model, while reserving to itself the right to make corresponding changes to the boat purchased, or not. The defendant relies on the following language:
MODEL OR DESIGN CHANGES. Buyer understand that the manufacturer retains the right to make changes in the model or design of it’s [sic] new boats as well as its accessories, at any time. Buyer agrees that any such change will not obligate the Seller or the Manufacturer to make corresponding changes in the particular boat motor and/or accessories covered by this agreement either before or after the delivery thereof to Buyer.
Review of the above language demonstrates that it does not relate to the seat cushion replacement issue which is the condition complained of in this matter. Here, there was no change made to the model or design of the boat. Rather, the defendant replaced fading seat cushions at the direction of the manufacturer between the date of purchase and the date of delivery but then failed to disclose this to the plaintiff. The court concludes that the defendant’s reliance on this language is inapposite.
The plaintiff’s core argument is that the boat was not new as represented by the defendant at the time of sale. He does not contend that the boat was previously owned or used by an individual. The plaintiff’s common law fraud claim is premised on his argument that the seller warranted that the boat was new and that because it replaced the seat cushions prior to delivery without advising him, the boat was not new. He argues an Oxford dictionary definition of the word "new," as "Not existing before, now made or brought into existence, for the first time." The plaintiff alleges, and the defendant does not contest, that he was not told that the manufacturer supplied replacement cushions which the seller installed prior to delivery. The plaintiff claims that as a result, the boat which defendant sold to him was no longer new. Regardless of the interpretation of the term new, the plaintiff has alleged facts from which he may reasonably argue that the boat was not in the same condition upon delivery as it was at the time of sale and that the defendant’s failure to inform him of this change was actionable as fraud.
in opposition to the motion for summary judgment, the plaintiff maintains that there are material issues of fact relating to the defendant’s liability in this matter which must be decided by the trier of fact and which preclude summary judgment. The crux of the plaintiff’s common-law fraud claim is that the defendant’s failure to inform him that it had replaced the seat cushions and in so doing reinstalled the leaning post, or helm seat, constitutes actionable fraud; as well as breach of express and implied warranties.
The plaintiff alleges, and the defendant does not dispute, that the defendant represented the boat to be new. There is no dispute that the boat was neither used, nor previously owned. The plaintiff argues, however, that because the defendant replaced cushions that were subject to fading before it delivered the boat and that it failed to advise him of this repair, that this constitutes the basis for his fraud claim in the first count. It also is the factual basis for his claims in the remaining counts of his complaint. The plaintiff’s allegations regarding the defendant’s responsibility for the replacement cushions and its representations to him regarding their replacement are relevant to his claim of fraud. It appears from the admitted facts of the case that the defendant used the wrong material when it reinstalled the leaning post seat after replacing the seat cushion on the helm seat. This is the seat which became dislodged causing the plaintiff to fall after only a few hours of operation. The defendant has since acknowledged this error and offered to perform the required repair. Relying on the above warranty disclaimer language the defendant argues, however, that the plaintiff has failed to allege facts which if found in his favor would constitute fraud in light of the disclaimers.
In evaluating the motion for summary judgment as to count one the court notes that allegations of common-law fraud constitute a non-contractual basis for recovery; therefore, any disclaimer of warranties or consequential damages under the purchase agreement should not apply. (see, e.g., Cayuga Harvester, Inc. v. Allis Chalmers Corp., 95 A.2d 5, 22-23 [4th Dept. 1983] [ruling that consequential damages were potentially recoverable under fraud cause of action, where contract between parties disclaimed consequential damages; such damages not available on contract-based causes of action] ). To constitute fraud, "[t]here must be a representation of fact, which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and to induce them to act upon it, causing injury." Jo Ann Homes at Bellmore v. Dworetz, 25 N.Y.2d 112, 119, 302 N.Y.S.2d 799, 250 N.E.2d 214 (1969); see, Chopp v. Welbourne & Purdy Agency, 522 N.Y.S.2d 367 (1987). The plaintiff’s claim of fraud states a non-contractual basis for recovery which is separate and distinct from the warranty disclaimers and other applicable limitations of liability set forth in the purchase agreement. At a minimum, viewing the allegations of count one most favorably for the plaintiff, the court concludes that allegations of the count one sufficiently state a cause of action for fraud and raise an issue of fact which the plaintiff is entitled to be decided by the trier of fact. For all of the foregoing reasons the court concludes that the plaintiff’s fraud claim raises genuine issues of material fact. The motion for summary judgment as to count one is denied.
C. Count Two- Breach of Express Warranty Under N.Y.U.C.C. 2-313 and Count Three- Breach of Implied Warranty Under N.Y.U.C.C. 2-314 and 2-315
In count two the plaintiff alleges that the defendant intentionally omitted the fact of the cushion replacement to defraud him and to induce him to purchase the boat, that the defendant’s representations of the boat as "new" ‘and its affirmation of the boat as "new" constituted express and implied warranties which the defendant has breached under N.Y.U.C.C. § 2-313 and N.Y.U.C.C. § § 2-314-15 respectively.
The Purchase Agreement, dated November 16, 2015 executed on or about November 23, 2015 disclaimed all express and implied warranties regarding Defendant MarineMax. In addition, the warranty registration made with the manufacturer clearly provides that no representations were made concerning the quality or function of the vessel.
Under N.Y.U.C.C. § 2-313, "In order to demonstrate that an express warranty was created under New York law, a plaintiff must prove that the statement falls within the definition of a warranty, that [he or] she relied on it, and that it became part of the basis for the bargain." Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, 473 (S.D.N.Y. 2010) (quoting Daley v. McNeil Consumer Prods., Co., 164 F.Supp.2d 367, 377 (S.D.N.Y. 2001)). In order "[t]o prevail on a claim of breach of express warranty, a plaintiff must show an affirmation of fact or promise by the seller, the natural tendency of which was to induce the buyer to purchase and that the warranty was relied upon." Factory Assocs. & Exps., Inc., v. Lehigh Safety Shoes Co., 382 Fed.Appx. 110, 111-12 (2d Cir. 2010) (internal quotations and citation omitted). See also Reed v. Pfizer, 839 F.Supp.2d 571, 578 (E.D.N.Y. 2012) (claim for breach of an express warranty requires that an express warranty existed, was breached, and that the plaintiff relied on the warranty).
In regard to implied warranties, N.Y.U.C.C. § 2-314, provides, in part:
Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
N.Y.U.C.C. § 2-315, provides:
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
However, N.Y.U.C.C. Section 2-316 provides that implied warranties can be excluded by conspicuous writing. See id., 2-316(2).
A clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type or color. Whether a term or clause is "conspicuous" or not is for decision by the court.Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, *472 (citing N.Y.U.C.C. § 1-201(10)). Additionally, disclaimer of an implied warranty requires that the statement specifically include the term merchantability. See N.Y.U.C.C. § 2-316(2).
The subject Purchase Agreement between plaintiff and defendant explicitly disclaims all warranties:
DISCLAIMER OF WARRANTIES. THE BOAT MOTOR AND ACCESSORIES BEING PURCHASED PURSUANT TO THIS AGREEMENT ARE SOLD BY SELLER "AS IS" AND SELLER MAKES NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, unless Seller give Buyer a written warranty on its own behalf or Seller enters into a service contract in connection with this sale or within 90 days of sale. If Seller give Buyer a written warranty on its own behalf or enters into a service contract in connection with this sale or within 90 days of sale, then any implied warranty shall be limited in duration of Seller’s written warranty or service contract. IN ALL CASES, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE BREACH OF THIS AGREEMENT, ANY EXPRESS OR IMPLIED WARRANTY OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Similar to the court’s finding in Kraft, "[t]he disclaimer provision meets the standards required by the U.C.C. to waive the implied warranties of merchantability and fitness for a particular purpose" as well as express warranties concerning seller, MarineMax. Id. Specifically, the words "MERCHANTABILITY" and "FITNESS FOR A PARTICULAR PURPOSE" are conspicuously provided in the written disclaimer in all capital letters. Accordingly, the court concludes that this disclaimer satisfies the requirements of the N.Y.U.C.C. to waive express and implied warranties. Furthermore, the plaintiff has acknowledged that he read the Purchase Agreement.
Additionally, the Warranty Registration, which the plaintiff completed and filed with Seminole Marine, Inc., included limited warranties, and clearly notes that no representations were made to Plaintiff regarding the quality and function of the vessel.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER REMEDIES AND WARRANTIES EXPRESSED AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS. THE LAW AND STATUTES OF THE GOVERNING STATE WHEREIN MANUFACTURER’S LIMITED WARRANTY, THIS WARRANTY SHALL BE MODIFIED TO BE IN COMPLIANCE THE GOVERNING STATUTES STATUTORY PROVISIONS. THE PURCHASER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO HIM OR HER WITH RESPECT TO THE QUALITY AND FUNCTION OF THE BOAT. ANY CONSEQUENTIAL DAMAGES WHICH MAY BE INCURRED ARE EXCLUDED AND PURCHASER’S REMEDY IS LIMITED TO REPAIR OR REPLACEMENT OF ANY PART(S) JUDGMENT DEFECTIVE BY SEMINOLE MARINE. IN STATES WHICH PROHIBIT SUCH LIMITATIONS OR EXCLUSIONS SEMINOLE’S LIMITATIONS OR EXCLUSIONS DO NOT APPLY DUE TO APPLICABLE STATUTORY PROHIBITIONS OF THE GOVERNING STATE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
Based on its review of the above documents, the court concludes that the explicit terms of the Purchase Agreement indicate that all express and implied warranties were disclaimed concerning the defendant MarineMax. Furthermore, the explicit terms of the Warranty Registration clearly indicate that no additional representations of fact were made to the plaintiff with regard to the quality or function of the boat. The disclaimer directly addresses the plaintiff’s allegations concerning breach of express and implied warranties.
The defendant makes the further argument that under the terms of the warranty, the plaintiff’s remedies are limited to repair. The defendant also claims that the repair changes which it made to the vessel were consistent with the terms and limitation of the warranty. Mark Lieberman, who at the time served as the General Manager of the MarineMax, communicated with the plaintiff concerning the possible repair, or upgrade of the subject boat after the subject incident. Plaintiff expert, Captain Andrew J. Cook testified that the subject seat could in fact still be repaired for as little as $500 and that the value of the boat would be restored with such a repair.
Plaintiff’s contention that the boat is not "new" is misplaced. The Vessel sold to Mr. Cohn was in fact new. See Sailfish Boats Manufacturers Statement of Origin. According to the testimony of Victoria Basile, the service manager representative of the defendant, it is not uncommon that new vessels require certain installations or repairs:
There are many times where a manufacturer will notice defects and they put out a bulletin. This was never a formal bulletin where I received e-mail. It was more verbal. On the other boat lines we deal with, there are many times where they notice, as boats get built, and failures happen, they then notify the dealer, please check these boats, there could be this issue, a cushion or something doesn’t work. I can’t think of anything in particular. And as a dealer it’s our responsibility to take care of it in inventory, and especially before a customer takes delivery of their boat, that’s what our responsibility is, and that’s what we do.
In addition to the explicit warranty terms, the Purchase Agreement specifically notes that the boat may have hours of use prior to delivery and that the manufacturer retained the right to make changes to the boat at any time. These terms are provided in clear and unambiguous terms with the Purchase Agreement.
PRIOR USE. Buyer acknowledges that this is a new boat being purchased pursuant to this Agreement may have hours of use prior to delivery to Buyer. This use may be the result of pretesting of the boat by the manufacturer, Seller, or potential buyers as well as on-water transportation of the boat to the delivery site.
The above PRIOR USE provisions appear in boldface type in the purchase agreement. Defendant also relies on the following provisions in the subject agreement:
MODEL OR DESIGN CHANGES. Buyer understands that the manufacturer retains the right to make changes in the model or design of its new boats as well as its accessories, at any time, Buyer agrees that any such change will not obligate the Seller or the Manufacturer to make corresponding changes in the particular boat motor and/or accessories covered by this agreement either before or after the delivery thereof to Buyer.
The above language addresses the fact that it is not unusual that when a purchaser buys a new vessel, it will have some hours of use with respect to certain testing. The plaintiff does not contest this fact, and although the defendant has argued it, the Prior Use provisions of the purchase agreement are not relevant to the subject motion for summary judgment.
Based on the above review of the facts and the claims of the parties as to counts three and four of the complaint, the court finds that there are no material facts in dispute with respect to the determination of the defendant’s liability to the plaintiff for breach of express or implied warranty under the applicable provisions of New York law. Therefore, the motion for summary as to counts two and three is granted.
D. Count Four- Breach of Implied Covenant of Good Faith & Fair Dealing
In support of his claim for breach of the implied covenant of good faith and fair dealing, the plaintiff relies on the same facts which he has alleged in the first three counts. He further attests in his affidavit that MarineMax represented in multiple ways that the boat was new, and that it withheld the existence of and subsequent replacement of the defective seat cushions when it delivered the boat. The plaintiff claims that the replacement of the defective seat cushions caused the boat not to be delivered in a new condition. He further argues that this fact undermined the very purpose of the contract which was for the purchase of a new boat and that MarineMax’s actions were intended to, and did, deprive the plaintiff of the right to receive the benefits under the purchase agreement.
It is well established that there is within every contract is an implied covenant of good faith and fair dealing (see, Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62, 412 N.Y.S.2d 287, 385 N.E.2d 566 (1978). This covenant is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement (see, Jaffe v. Paramount Communications, 222 A.D.2d 17, 22-23644 N.Y.S.2d 43 (2017). For a complaint to state a cause of action alleging breach of an implied covenant of good faith and fair dealing, the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff. See, e.g., Dvoskin v. Prinz, 205 A.D.2d 661, 662, 613 N.Y.S.2d 654 (1994). "[A] party may be in breach of its implied duty of good faith and fair dealing even if it is not in breach of its express contractual obligations." Chase Manhattan Bank, N.A. v. Keystone Distributors, Inc., 873 F.Supp. 808, 815 (S.D.N.Y. 1994).
An implied covenant of good faith and fair dealing is imbedded in contracts under New York law. Section 205 of Restatement (Second) of Contract provides "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." However, "To state a claim of breach of the implied covenant of good faith and fair dealing, a party must allege (1) a specific implied contractual obligation, (2) a breach of that obligation by the defendant, and (3) resulting damage to the plaintiff." Kagan v. HMC-New York, Inc., 94 A.D.3d 67, 77 (1st Dept. 2012) (denial regarding claim for breach of implied covenant of good faith was proper where plaintiff failed to allege any specific contractual obligation) (citation omitted). To state a cognizable claim, "[a] plaintiff must allege a specific implied contractual obligation and allege how the violation of that obligation denied the plaintiff the fruits of the contract." See id. (Citation omitted.)
The court has reviewed the plaintiff’s allegations with the above requirements in mind. "Breach of an implied covenant of good faith and fair dealing claim that is duplicative of a breach of contract claim must be dismissed." Villacorta v. Saks, Inc., 32 Misc.3d 1203(A), 2011 N.Y. Slip. Op. 51160(U) (Sup.Ct., Ny County 2011) (citing New York University v. Continental Ins. Co., 87 N.Y.2d 308, 319-20, 639 N.Y.S.2d 283 (1995)). "In this regard, a good faith claim is redundant if it merely pleads that defendant did not act in good faith in performing its contractual obligations." See id. (citing Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 A.3d 423, 894 N.Y.S.2d 47, 49-50 (1st Dept 2010) (good faith and fair dealing claim dismissed because it arose from the same facts as the breach of contract claim)).
Review of the plaintiff’s allegations of breach of covenant of good faith and fair dealing reflects that they are duplicative of other contractual claims, as plaintiff conclusively pleads that defendant did not act in good faith in performing its contractual obligations. Allegations that a defendant breached the covenant of good faith by action and inaction, duplicating the allegations of breach of warranty without more, are insufficient to maintain a claim for breach of a covenant of good faith and fair dealing. For the foregoing reasons, the motion for summary judgment as to count four is granted.
E. Count Five- Violation of N.Y. GBL § 349
In the fifth count of his complaint, the plaintiff alleges that the defendant breached N.Y. Gen. Bus. Law § 349 by making material misrepresentations that the boat was new and failing to disclose replacement of the seat cushions to him and to other consumers and failing to compensate other consumers for these claims. The defendant maintains that it is entitled to summary judgment on plaintiff’s N.Y. Gen. Bus. Law § 349 claim because MarineMax’s alleged conduct cannot be considered to be "consumer oriented." Under N.Y. GBL § 349, "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." See N.Y. Gen. Bus. Law § 349(a). "A plaintiff [suing] under section 349 must prove three elements: first that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act." Tomasino v. Estee Lauder Cos., 44 F.Supp.3d 251, 257 (E.D.N.Y. 2014) (quoting Stutman v. Chem. Bank, 95 N.Y.2d 24, 27, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000)) (alteration in original).
N.Y. Gen. Bus. Law § 349 is not meant to address private contractual matters. "As a threshold matter, plaintiffs claiming the benefit of section 349- whether individuals or entities ... must charge conduct of the defendant that is consumer-oriented." Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25; 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). Thus, Plaintiff "must demonstrate that the acts or practices have a broad[ ] impact on consumers at large. Private contract disputes, unique to parties, for example, would not fall within the ambit of the statute." Id. Typically, private contract disputes cannot form the basis of a § 349 claim. A plaintiff "must demonstrate that the acts or practices have a broader impact on consumers at large. Private contract disputes, unique to the parties, for example, would not fall within the ambit of the statute." Euchner-USA, Inc. v. Hartford Cas. Ins. Co., 754 F.3d 136, 143 (2d Cir. 2014) (internal quotations and citations omitted). See also Polidoro v. Chubb Corp., 354 F.Supp.2d 349, 353-54 (S.D.N.Y. 2005) (court held that claims that workers’ compensation insurance carrier breached insurance contract when it failing to provide physical therapy to individual insufficient basis to state a GBL § 349 claim); Canario v. Gunn, 300 A.D.2d 332, 333, 751 N.Y.S.2d 310 (2d Dep’t 2002) (where misrepresentation could potentially affect a single real estate transaction, it was not consumer-oriented or sufficient to sustain a GBL § 349 claim).
Review of the plaintiff’s claims, even viewed most favorably to the plaintiff reflects that the evidence does not support the plaintiff’s claim that the defendant’s alleged conduct affected consumers at large. In this case, the plaintiff has alleged that he fell as a result of the defendant’s failure to secure the helm, or "captain’s" chair after it replaced the cushion. There is no evidence to support a claim that the defendant’s alleged conduct harmed anyone other than the plaintiff. The court is persuaded by the analysis and conclusion of the court in Kraft, supra, where similar allegations existed concerning the sale of a powerboat, and the court determined that "private contract disputes, unique to parties, for example, would not fall within the ambit of the statute." See Kraft v. Staten Island Boat Sales, Inc., 715 F.Supp.2d 464, *479 (S.D.N.Y. 2010) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)). Therefore, the plaintiff as an individual cannot look to GBL § 349 for relief against the defendant in this matter. The motion for summary judgment as to count five is granted.
CONCLUSION
The court concludes that applying to the terms of the subject Purchase Agreement demonstrate that the sale and subsequent offer to repair the subject vessel to the undisputed facts of this case, there is no material issue of fact as to whether the defendant violated N.Y.U.C.C. § 2-313 concerning breach of express warranty, N.Y.U.C.C. § § 2-314, 2-315 concerning breach of implied warranty, or New York General Business Law § 349. Summary judgment is therefore, granted as to count two, three, four and five of the complaint. Conversely, the court finds that the plaintiff is entitled to determination or the issues raised in count one of his complaint as to his claims of common-law fraud. Summary judgment is denied as to count one.