
    Mickey Kaiserman, Respondent, v Martin J. Ain, Ltd., Appellant.
    Supreme Court, Appellate Term, Second Department,
    July 14, 1981
    APPEARANCES OF COUNSEL
    
      Melvin Siegel, P. C., for appellant. Mickey Kaiserman, respondent pro se.
    
   OPINION OF THE COURT

Memorandum.

Judgment reversed, without costs, and complaint dismissed.

Plaintiff instituted this action for the return of a deposit in the sum of $1,000 placed on a contract to purchase a new car from defendant. Plaintiff initially tendered a $50 refundable deposit to defendant. One week later plaintiff tendered an additional deposit of $950. Approximately two weeks later plaintiff notified defendant that he intended to cancel the contract. The contract contained a liquidated damage clause which provided for damages in the sum of 20% of the purchase price against which the deposit was to be credited. Section 2-708 of the Uniform Commercial Code, as interpreted by the Court of Appeals in Neri v Retail Mar. Corp. (30 NY2d 393), indicates that retail dealers are now entitled to recover their loss of profit. The reference to an “inexhaustible supply” merely highlights the difference between a dealer and a nondealer. Presumably, a dealer in boats, cars, etc., has a sufficient stock so that he loses a sale whenever forced to sell the same car twice as a result of the first buyer’s breach. In any event, unless the 20% liquidated damage clause was unreasonable, and no one so found, it can be relied upon to fix the measure of damages (see Uniform Commercial Code, § 2-718). Since this sum far exceeded the deposit, plaintiff is not entitled to restitution.

Di Paolo, J. (dissenting). While the seller’s damages under section 2-708 of the Uniform Commercial Code are his loss of profits less incidental expenses, unlike the situation in Neri v Retail Mar. Corp. (30 NY2d 393, 399-400), the seller failed to establish that he had “an inexhaustible supply of cars” and would necessarily have made two sales instead of one. For these reasons, I recommend affirmance rather than reversal.

Farley, P. J., and O’Gorman, J., concur in memorandum; Di Paola, J., dissents in separate memorandum.  