Preview
FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023
"C"
EXHIBIT
FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023
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INDEX NO. 604165/2023
FILED: NASSAU COUNTY CLERK 03/10/2023 03: 49 PM)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
MICHAEL REITER andALEXREITER, Index No.:
Plaintiff designates Nassau
County As the Place of Trial
-against-
Venue is based upon
GOLD COAST MASERATI and Defendant's
BANK OF AMERICA Place of Business
. . . x
TO THE ABOVE NAME DEFENDANT(S):
YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs
attorneys an answer to the Complaint in this action within twenty (20) days after the
service of the summons, exclusive of the day of service (or within thirty days after the
service is complete if this summons is not personally delivered to you within the State of
New York), and in case of your failure to answer, judgment will be taken against you by
default for the relief demanded in the Complaint.
DATED: Long Island City, New York
March 10, 2023
/s/
David M. Kasell, Esq.
KASELL LAW FIRM
Attorneys for Plaintiff
1038 Jackson Avenue, #4
Long Island City, NY 11101
(718) 404-6668
To: Gold Coast Maserati
732 Northern Boulevard
Great Neck, New York 11021
Bank of America, N.A. Legal Order Processing & Case Resolution Operations
DE5-024-02-08
800 Samoset Dr.
Newark, DE 19713
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
MICHAEL REITER and ALEX REITER, Index No.
Plaintiffs,
-against- COMPLAINT
GOLD COAST MASERATI and
BANK OF AMERICA,
Defendants,
-------------------------Ç
plaintiffs'
As and for complaint, in the above captioned action, plaintiffs Michael
Plaintiffs'
Reiter and Alex Reiter (collectively, "Plaintiffs"), by and through attorneys,
Kasell Law Firm, allege as follows:
1. Michael Reiter is an individual who resides in the State of New York, at 2000 Royal
Court North Hills, NY 11040.
2. Alex Reiter is an individual who resides in the State of New York, at 3893 Mill Road
Seaford, NY 11783.
3. Defendant, Gold Coast Maserati ("Dealer") is a corporation authorized to do business
in the State of New York, with its principal place of business at 732 Northern Blvd.
Great Neck, NY 11021
4. Dealer is engaged in the business of selling and arranging of financing for used motor
vehicles that it sells to the public.
5. Bank of America is in the business of purchasing retail installment contracts to
facilitate financing of motor vehicle sales to the public.
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LEGAL FRAMEWORK
6. New York's Vehicle and Traffic Law § 417 requires that "[u]pon the sale or transfer
of title by a retail dealer of any second hand motor vehicle, intended for use by the
buyer, his agent or representative upon the public highways, the vendor shall execute
and deliver to the vendee an instrument in writing, in a form prescribed by the
commissioner,... in which shall be given the make, year.... Such notice shall also
contain a certification that said motor vehicle complies with such requirements of this
chapter as shall be specified by the commissioner and that it is in condition and repair
to render, under normal use, satisfactory and adequate service upon the public
delivery."
highway at the time of
7. The Regulations of the New York State Commissioner of Motor Vehicles, Part
78.13(c) states in relevant part: "All motor vehicles, except motorcycles, must be
inspected for the following items of equipment and such equipment must meet the
standards set forth herein before the certification set forth in subdivision (b) of this
section may be issued: ...(13) "Emission control system. All 1968 and later model
vehicles must be equipped with an emission control system in good working order".
BACKGROUND
8. On or about September 30, 2022 Plaintiffs went to purchase from Dealer a used 2022
BMW M8 (the "Vehicle"), Vehicle Identification Number WBSGVOC04NCJ27750,
for valuable consideration. A copy of the retail installment sales contract ("RISC")
for the purchase of the Vehicle is attached hereto as Exhibit "A".
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9. The purchase price of the Vehicle, including the down-payment of $15,000, trade-in
of a 2019 Mercedes-Benz C-class, document fees, license and title fees, and sales tax,
and interest totaled approximately $175,158.
10. Upon information and belief, the Vehicle was purchased by Dealer without catalytic
converters.
11. Dealer never disclosed to Plaintiffs that the Vehicle had been modified in any way or
that it was missing its legally required emission control systems.
12. In fact, the Vehicle had its catalytic converters removed and upon information and
belief, had modifications to the Vehicle's intake/air flow.
13. Based on the requirements of Vehicle & Traffic Law § 417 Dealer was required to
ensure that there were catalytic converters or a catalytic converter as required
emission control system equipment on the vehicle prior to its sale to Plaintiffs.
14. However, the Vehicle was sold without catalytic converters, in violation of the law.
15. Additionally, the Vehicle was sold with bent rims, aftermarket engine parts, tinted
windows that upon information and belief, are illegally darkened.
16. Plaintiffs complained to Dealer that the Vehicle sounded too loud when the engine
was running and was told by Dealer that "This is what a stock M8 sounds like".
17. It wasn't until Plaintiffs informed Dealer that a mechanic had looked at the Vehicle
that Dealer admitted that the Vehicle did not have catalytic converters when it was
sold to Plaintiffs.
Plaintiffs'
18. Nevertheless, Dealer refused to take the Vehicle back and refund their
money.
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19. In response to Plaintiffs concerns about the modifications to the Vehicle, Dealer
acknowledged the modifications and promised to warranty the Vehicle for any
problems that would not be covered by the manufacturer. A copy of Dealer's email is
attached as Exhibit "B".
20. Plaintiffs retained counsel to assist them in dealing with their problem.
Plaintiffs'
21. attorneys wrote to the Dealer on January 23, 2023, to revoke Plaintiff's
acceptance of the Vehicle and in an attempt to resolve this matter without the need for
Plaintiffs'
litigation. A copy of letter through counsel to the Dealer is attached as
Exhibit "C".
COUNT I
VIOLATION OF GBL § 349
22. Plaintiff realleges and incorporates by reference as though fully set forth herein, in
paragraphs 1 - 21 of this Complaint.
23. New York General Business Law § 349 prohibits the use of deceptive or unfair
practices in the conduct of any business, trade or commerce or in the furnishing of
any service in New York.
24. The conduct alleged herein, and the sale and financing of vehicles is consumer
oriented conduct as it has the demonstrated potential to be repeated with other
consumers.
25. Dealer engaged in deceptive acts and practices that damaged Plaintiff by selling, as a
licensed automobile dealership, a vehicle without required emission control
equipment.
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attorneys'
26. Plaintiff hereby demands that all fees, costs, and other fees of this action be
borne by Dealer and that the Court award Plaintiff's actual damages, as well as
punitive damages in an amount to be determined at trial.
COUNT II
FRAUD
27. Plaintiffs repeat the allegations set forth in paragraphs 1 - 26 as if fully set forth at
length herein.
28. Dealer made material omissions and misrepresentations of fact regarding the
Vehicle.
29. Dealer knew these omissions and misrepresentations of fact were false.
30. Dealer made these omissions and misrepresentations for the purpose of inducing
Plaintiff to rely upon them.
31. Plaintiff did, in fact, justifiably rely on the misrepresentations and material
omissions by Dealer.
32. Plaintiff has been damaged as a result of Dealer's omissions and
misrepresentations.
COUNT III
LIABILITY OF BANK OF AMERICA
33. Plaintiffs repeat the allegations set forth in paragraphs 1- 32 as if set forth at
fully
length herein. This Count is brought against Bank of America, only.
34. Federal Law (16 C.F.R. part 433) provides all retail installment contracts contain
the following provision:
NOTICE: ANY HOLDER OF THIS CONSUMER CONTRACT IS
SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR
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COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES
OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS
HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT
EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
35. Bank of America is the holder of the consumer credit contract(s) memorialized by
Plaintiffs'
the RISC for the purchase of Vehicle. Bank of America is bound by the
terms quoted in Paragraph 33 above, subjecting it to all claims and defenses
which Plaintiffs have asserted against Dealer.
"good"
36. The Vehicle constitutes the obtained with the proceeds of the RISC.
37. Dealer and Bank of America sold the Vehicle, which constitutes the good
obtained with the proceeds of the loan.
38. Consequently, Bank of America is subject to all claims and defenses that
Plaintiffs could assert against Dealer.
COUNT IV
FRAUDULENT MISREPRESENTATION
39. Plaintiff repeats the allegations set forth in paragraphs 1 - 38 as if fully set forth at
length herein.
40. Dealer made false representations of fact regarding the Vehicle including but not
limited to the emissions equipment on the Vehicle.
41. The representations were made with full knowledge of their falsity or with
reckless disregard of the truth.
42. Dealer intended Plaintiffs to rely on the representations of the Vehicle's emissions
equipment.
43. Plaintiff justifiably relied on the representations regarding the Vehicle's emissions
equipment.
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44. The false representations were made willfully, recklessly, maliciously and with
intent to injure and defraud Plaintiff.
COUNT V
REVOCATION OF ACCEPTANCE PURSUANT TO N.Y.U.C.C. § 2-608
45. Plaintiff realleges and incorporates by reference as though fully set forth herein, paragraphs 1 - 44
of this Complaint.
46. Dealer's tender of the Vehicle was substantially impaired to Plaintiffs.
47. Dealer's tender of the Vehicle, which was substantially impaired to Plaintiffs, constitutes a sale of
nonconfonning goods and Plaintiffs are entitled to the remedy of revocation as set forth in
N.Y.U.C.C. 2-608.
WHEREFORE, Plaintiff prays for judgment against Dealer for a full refund, actual
damages, plus all finance charges, pre-judgment interest, incidental and consequential
damages, punitive damages and attorney fees and such other and further relief that the
Court deems just and proper.
DATED: Long Island City, New York
March 10, 2023
/s/
By: David M. Kasell, Esq.
KASELL LAW FIRM
Attorneys for Plaintiffs
1038 Jackson Avenue, #4
Long Island City, NY 11101
(718) 404-6668
Preview
FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 "C" EXHIBIT FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 INDEX NO. 604165/2023 FILED: NASSAU COUNTY CLERK 03/10/2023 03: 49 PM) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X MICHAEL REITER andALEXREITER, Index No.: Plaintiff designates Nassau County As the Place of Trial -against- Venue is based upon GOLD COAST MASERATI and Defendant's BANK OF AMERICA Place of Business . . . x TO THE ABOVE NAME DEFENDANT(S): YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs attorneys an answer to the Complaint in this action within twenty (20) days after the service of the summons, exclusive of the day of service (or within thirty days after the service is complete if this summons is not personally delivered to you within the State of New York), and in case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Complaint. DATED: Long Island City, New York March 10, 2023 /s/ David M. Kasell, Esq. KASELL LAW FIRM Attorneys for Plaintiff 1038 Jackson Avenue, #4 Long Island City, NY 11101 (718) 404-6668 To: Gold Coast Maserati 732 Northern Boulevard Great Neck, New York 11021 Bank of America, N.A. Legal Order Processing & Case Resolution Operations DE5-024-02-08 800 Samoset Dr. Newark, DE 19713 1 of 1 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 COUNTY CLERK I N DE X NO . 60 4 1 65 / 2 02 3 [FILED : NASSAU 03/10/2023 03: 49 PM| NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X MICHAEL REITER and ALEX REITER, Index No. Plaintiffs, -against- COMPLAINT GOLD COAST MASERATI and BANK OF AMERICA, Defendants, -------------------------Ç plaintiffs' As and for complaint, in the above captioned action, plaintiffs Michael Plaintiffs' Reiter and Alex Reiter (collectively, "Plaintiffs"), by and through attorneys, Kasell Law Firm, allege as follows: 1. Michael Reiter is an individual who resides in the State of New York, at 2000 Royal Court North Hills, NY 11040. 2. Alex Reiter is an individual who resides in the State of New York, at 3893 Mill Road Seaford, NY 11783. 3. Defendant, Gold Coast Maserati ("Dealer") is a corporation authorized to do business in the State of New York, with its principal place of business at 732 Northern Blvd. Great Neck, NY 11021 4. Dealer is engaged in the business of selling and arranging of financing for used motor vehicles that it sells to the public. 5. Bank of America is in the business of purchasing retail installment contracts to facilitate financing of motor vehicle sales to the public. 1 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 FILED NASSAU CLERK INDEX NO. 604165/2023 : COUNTY 03/10/2023 03: 49 PM) NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 LEGAL FRAMEWORK 6. New York's Vehicle and Traffic Law § 417 requires that "[u]pon the sale or transfer of title by a retail dealer of any second hand motor vehicle, intended for use by the buyer, his agent or representative upon the public highways, the vendor shall execute and deliver to the vendee an instrument in writing, in a form prescribed by the commissioner,... in which shall be given the make, year.... Such notice shall also contain a certification that said motor vehicle complies with such requirements of this chapter as shall be specified by the commissioner and that it is in condition and repair to render, under normal use, satisfactory and adequate service upon the public delivery." highway at the time of 7. The Regulations of the New York State Commissioner of Motor Vehicles, Part 78.13(c) states in relevant part: "All motor vehicles, except motorcycles, must be inspected for the following items of equipment and such equipment must meet the standards set forth herein before the certification set forth in subdivision (b) of this section may be issued: ...(13) "Emission control system. All 1968 and later model vehicles must be equipped with an emission control system in good working order". BACKGROUND 8. On or about September 30, 2022 Plaintiffs went to purchase from Dealer a used 2022 BMW M8 (the "Vehicle"), Vehicle Identification Number WBSGVOC04NCJ27750, for valuable consideration. A copy of the retail installment sales contract ("RISC") for the purchase of the Vehicle is attached hereto as Exhibit "A". 2 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 INDEX NO. 604165/2023 [FILED : NASSAU COUNTY CLERK 03/10/2023 03: 49 PM| NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 9. The purchase price of the Vehicle, including the down-payment of $15,000, trade-in of a 2019 Mercedes-Benz C-class, document fees, license and title fees, and sales tax, and interest totaled approximately $175,158. 10. Upon information and belief, the Vehicle was purchased by Dealer without catalytic converters. 11. Dealer never disclosed to Plaintiffs that the Vehicle had been modified in any way or that it was missing its legally required emission control systems. 12. In fact, the Vehicle had its catalytic converters removed and upon information and belief, had modifications to the Vehicle's intake/air flow. 13. Based on the requirements of Vehicle & Traffic Law § 417 Dealer was required to ensure that there were catalytic converters or a catalytic converter as required emission control system equipment on the vehicle prior to its sale to Plaintiffs. 14. However, the Vehicle was sold without catalytic converters, in violation of the law. 15. Additionally, the Vehicle was sold with bent rims, aftermarket engine parts, tinted windows that upon information and belief, are illegally darkened. 16. Plaintiffs complained to Dealer that the Vehicle sounded too loud when the engine was running and was told by Dealer that "This is what a stock M8 sounds like". 17. It wasn't until Plaintiffs informed Dealer that a mechanic had looked at the Vehicle that Dealer admitted that the Vehicle did not have catalytic converters when it was sold to Plaintiffs. Plaintiffs' 18. Nevertheless, Dealer refused to take the Vehicle back and refund their money. 3 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 INDEX NO. 604165/2023 FILED : NASSAU COUNTY CLERK 03/10/2023 03:49 PM) NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 19. In response to Plaintiffs concerns about the modifications to the Vehicle, Dealer acknowledged the modifications and promised to warranty the Vehicle for any problems that would not be covered by the manufacturer. A copy of Dealer's email is attached as Exhibit "B". 20. Plaintiffs retained counsel to assist them in dealing with their problem. Plaintiffs' 21. attorneys wrote to the Dealer on January 23, 2023, to revoke Plaintiff's acceptance of the Vehicle and in an attempt to resolve this matter without the need for Plaintiffs' litigation. A copy of letter through counsel to the Dealer is attached as Exhibit "C". COUNT I VIOLATION OF GBL § 349 22. Plaintiff realleges and incorporates by reference as though fully set forth herein, in paragraphs 1 - 21 of this Complaint. 23. New York General Business Law § 349 prohibits the use of deceptive or unfair practices in the conduct of any business, trade or commerce or in the furnishing of any service in New York. 24. The conduct alleged herein, and the sale and financing of vehicles is consumer oriented conduct as it has the demonstrated potential to be repeated with other consumers. 25. Dealer engaged in deceptive acts and practices that damaged Plaintiff by selling, as a licensed automobile dealership, a vehicle without required emission control equipment. 4 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 FILED NASSAU COUNTY CLERK INDEX NO. 604165/2023 : 03/10/2023 03:49 PM) NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 attorneys' 26. Plaintiff hereby demands that all fees, costs, and other fees of this action be borne by Dealer and that the Court award Plaintiff's actual damages, as well as punitive damages in an amount to be determined at trial. COUNT II FRAUD 27. Plaintiffs repeat the allegations set forth in paragraphs 1 - 26 as if fully set forth at length herein. 28. Dealer made material omissions and misrepresentations of fact regarding the Vehicle. 29. Dealer knew these omissions and misrepresentations of fact were false. 30. Dealer made these omissions and misrepresentations for the purpose of inducing Plaintiff to rely upon them. 31. Plaintiff did, in fact, justifiably rely on the misrepresentations and material omissions by Dealer. 32. Plaintiff has been damaged as a result of Dealer's omissions and misrepresentations. COUNT III LIABILITY OF BANK OF AMERICA 33. Plaintiffs repeat the allegations set forth in paragraphs 1- 32 as if set forth at fully length herein. This Count is brought against Bank of America, only. 34. Federal Law (16 C.F.R. part 433) provides all retail installment contracts contain the following provision: NOTICE: ANY HOLDER OF THIS CONSUMER CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR 5 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 INDEX NO. 604165/2023 FILED : NASSAU COUNTY CLERK 03/10/2023 03:4 9 PM) NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. 35. Bank of America is the holder of the consumer credit contract(s) memorialized by Plaintiffs' the RISC for the purchase of Vehicle. Bank of America is bound by the terms quoted in Paragraph 33 above, subjecting it to all claims and defenses which Plaintiffs have asserted against Dealer. "good" 36. The Vehicle constitutes the obtained with the proceeds of the RISC. 37. Dealer and Bank of America sold the Vehicle, which constitutes the good obtained with the proceeds of the loan. 38. Consequently, Bank of America is subject to all claims and defenses that Plaintiffs could assert against Dealer. COUNT IV FRAUDULENT MISREPRESENTATION 39. Plaintiff repeats the allegations set forth in paragraphs 1 - 38 as if fully set forth at length herein. 40. Dealer made false representations of fact regarding the Vehicle including but not limited to the emissions equipment on the Vehicle. 41. The representations were made with full knowledge of their falsity or with reckless disregard of the truth. 42. Dealer intended Plaintiffs to rely on the representations of the Vehicle's emissions equipment. 43. Plaintiff justifiably relied on the representations regarding the Vehicle's emissions equipment. 6 of 7 FILED: NASSAU COUNTY CLERK 05/04/2023 03:43 PM INDEX NO. 604165/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/04/2023 INDEX NO. 60 4 165/2023 FILED : NASSAU COUNTY CLERK 03/10/2023 03: 49 PM| NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/10/2023 44. The false representations were made willfully, recklessly, maliciously and with intent to injure and defraud Plaintiff. COUNT V REVOCATION OF ACCEPTANCE PURSUANT TO N.Y.U.C.C. § 2-608 45. Plaintiff realleges and incorporates by reference as though fully set forth herein, paragraphs 1 - 44 of this Complaint. 46. Dealer's tender of the Vehicle was substantially impaired to Plaintiffs. 47. Dealer's tender of the Vehicle, which was substantially impaired to Plaintiffs, constitutes a sale of nonconfonning goods and Plaintiffs are entitled to the remedy of revocation as set forth in N.Y.U.C.C. 2-608. WHEREFORE, Plaintiff prays for judgment against Dealer for a full refund, actual damages, plus all finance charges, pre-judgment interest, incidental and consequential damages, punitive damages and attorney fees and such other and further relief that the Court deems just and proper. DATED: Long Island City, New York March 10, 2023 /s/ By: David M. Kasell, Esq. KASELL LAW FIRM Attorneys for Plaintiffs 1038 Jackson Avenue, #4 Long Island City, NY 11101 (718) 404-6668