Colabella v. Europa International, Inc.

In an action to recover damages pursuant to General Business Law § 198-b relating to the sale of two used motor vehicles, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Marbach, J.), entered June 26, 1989, as denied its motion for summary judgment dismissing the complaint as to the used motor vehicle purchased by and registered to the plaintiff Cheryl Colabella, and granted the plaintiffs’ cross motion for leave to amend the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant asserted that the plaintiff Cheryl Colabella lacked standing to bring this action under General Business Law § 198-b, known as the "Used Car Lemon Law”, because she could not qualify as a "consumer” thereunder. The determination of whether a person is a consumer within the meaning of the statute is based upon the manner in which she uses the subject motor vehicle. In order for the purchaser to qualify as a consumer, the use must be noncommercial in nature (see, Loomis v Maguire’s Equip. Sales, 124 AD2d 82, 84) such as for personal, family or household purposes. A review of the instant record including, inter alia, the plaintiffs’ answers to interrogatories and the verified amended complaint, indicates that a triable issue of fact exists as to whether Cheryl Colabella’s primary intended use of the motor vehicle registered to her individually was personal, family or household oriented (see, General Business Law § 198-b [a] [1], as amended by L 1990, ch 530, § 2; Matter of Volkswagen of Am. v Friedman, 166 AD2d 709; Chrysler Motors Corp. v Schachner, 138 Misc 2d 501, 508, revd on other grounds 166 AD2d 683). Consequently, we find that the court correctly declined to grant summary judgment to the defendant as to the causes of action relating to Cheryl Colabella’s automobile. We have reviewed the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Brown, Kunzeman and Miller, JJ., concur.