
    [968 NYS2d 827]
    Kate Cifarelli, Respondent, v Louis Demetro, Appellant.
    Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts,
    May 23, 2013
    
      APPEARANCES OF COUNSEL
    
      Christopher Fingerhut, Westbury, for appellant. Kate Cifarelli, respondent pro se.
   OPINION OF THE COURT

Memorandum.

Ordered that the judgment is modified by providing that contemporaneously with defendant’s payment of the judgment, plaintiff shall make available to defendant the vehicle in question; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the sum of $4,300, which she had paid to defendant for a used car that plaintiff alleges was unsafe to drive. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $4,300. The court determined that the vehicle, despite being sold “as is,” included an implied warranty of fitness for the particular purpose of use on the road and that the vehicle was not fit for such intended use.

Upon a review of the record, we disagree with the District Court’s analysis and its finding of a breach of an implied warranty of fitness for a particular purpose (see UCC 2-315, 2-316 [3] [a]). However, the record shows that defendant had given plaintiff an express warranty, which was breached by the fact that, at the time of the sale, the car was unsafe and could not pass inspection (UCC 2-313), and plaintiff established that she had properly revoked her acceptance of the vehicle, as its nonconformity substantially impaired its value to her (UCC 2-608). This express warranty was not waived by the “as is” disclaimer (UCC 2-316 [3] [a]). However, where, as here, a buyer revokes her acceptance of goods pursuant to UCC 2-608, the buyer must still make the goods available to the seller.

Accordingly, substantial justice (see UDCA 1804, 1807) requires that the judgment be modified by providing that plaintiff make the vehicle available to defendant contemporaneously with the payment of the judgment (see UDCA 1805), and, as so modified, affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.  