Answer: Joanne Burns v. Fca Us Llc

On June 19, 2023 a Answer was filed involving a dispute between Joanne Burns, and Fca Us Llc, for Commercial - Contract in the District Court of Warren County.

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FILED: WARREN COUNTY CLERK 08/14/2023 03:08 PM INDEX NO. EF2023-71461
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/14/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
______________________________________________
JOANNE BURNS,

Plaintiff,
VERIFIED ANSWER
-against-
Index No.: EF2023-71461
FCA US LLC,

Defendant.
________________________________________________

Defendant, FCA US LLC, by and through its attorneys, RoseWaldorf PLLC, as and for

its verified answer to the verified complaint of Plaintiff, Joanne Burns, filed June 19, 2023,

alleges as follows:

1. Denies knowledge or information sufficient to form a belief as to the allegations

contained in paragraphs “1,” “4” and “5” of Plaintiff’s verified complaint.

2. Denies each and every allegation contained in paragraph “2” of Plaintiff’s verified

complaint except admits that FCA US LLC is a limited liability company duly authorized to

transact business in the State of New York with a principal place of business at 1000 Chrysler

Drive, Auburn Hills, Michigan 48326.

3. Denies knowledge or information sufficient to form a belief as to the allegations

contained in paragraph “3” of Plaintiff’s verified complaint except admits that FCA US LLC is

the manufacturer and warrantor of the 2021 Jeep Grand Cherokee.

4. Denies each and every allegation contained in paragraphs “6” and “8” of

Plaintiff’s verified complaint except admits that its written limited warranty accompanied the

vehicle at the time of original delivery but refers to the trial court questions regarding the terms

and conditions of the written limited warranty.
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5. Denies each and every allegation contained in paragraphs “7,” “9” and “10” of

Plaintiff’s verified complaint.

AS TO THE FIRST CAUSE OF ACTION

6. In response to paragraph “11” of Plaintiff’s verified complaint, FCA US LLC

incorporates by reference its previous answers to paragraphs “1” through “10” of Plaintiff’s

verified complaint as though the same were set forth herein at length.

7. Denies knowledge or information sufficient to form a belief as to the allegations

contained in paragraphs “12,” “13,” “14,” “17,” “18” and “20” of Plaintiff’s verified complaint

and refers statutory interpretation to the trial court.

8. Denies each and every allegation contained in paragraphs “15,” “16,” “19,” “21,”

“22,” “23,” “24,” “25,” “26” and “27” of Plaintiff’s verified complaint.

AS TO THE SECOND CAUSE OF ACTION

9. In response to paragraph “28” of Plaintiff’s verified complaint, FCA US LLC

incorporates by reference its previous answers to paragraphs “1” through “27” of Plaintiff’s

verified complaint as though the same were set forth herein at length.

10. Denies knowledge or information sufficient to form a belief as to the allegations

contained in paragraphs “29,” “30,” “31,” “32” and “36” of Plaintiff’s verified complaint, and

refers statutory interpretation to the trial court.

11. Denies each and every allegation contained in paragraph “33” of Plaintiff’s

verified complaint except admits that FCA US LLC’s written limited warranty accompanied the

vehicle at the time of delivery but refers to the trial court questions regarding the terms and

conditions of the written limited warranty.

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12. Denies each and every allegation contained in paragraphs “34,” “35,” “37,” “38,”

“39” and “40” of Plaintiff’s verified complaint.

AS TO THE THIRD CAUSE OF ACTION

13. In response to paragraph “41” of Plaintiff’s verified complaint, FCA US LLC

incorporates by reference its previous answers to paragraphs “1” through “40” of Plaintiff’s

verified complaint as though the same were set forth herein at length.

14. Denies each and every allegation contained in paragraphs “42,” “43,” “44” and

“45” of Plaintiff’s verified complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

There is no privity of contract between Plaintiff Joanne Burns and FCA US LLC.

Therefore, as a matter of law, to the extent the verified complaint pleads breach of implied

warranty or revocation, it fails to state a cause of action.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

Under the terms of FCA US LLC's written limited warranty, FCA US LLC has

disclaimed all implied warranties of merchantability or fitness for a specific use or has limited

the duration of any implied warranty to the terms of the written limited warranty.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

Under the terms of FCA US LLC's written limited warranty, FCA US LLC's sole

obligation is to pay for repairs and/or the performance of repairs and needed adjustments to

correct defects related to factory material and workmanship. FCA US LLC has paid for or

performed all such repairs and needed adjustments; therefore, there has been no breach of the

written limited warranty.

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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

Under the terms of FCA US LLC's written limited warranty, the payment for and/or the

performance of repairs and needed adjustments to correct defects related to factory material or

workmanship is the exclusive remedy.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

Under the terms of FCA US LLC's written limited warranty, the payment for and/or the

performance of repairs and needed adjustments to correct defects related to factory material or

workmanship is the exclusive remedy. FCA US LLC has paid for and/or performed all repairs

and needed adjustments. Therefore, there has been no breach of the written limited warranty.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

Under the terms of FCA US LLC's written limited warranty, FCA US LLC is not liable

for incidental or consequential damages resulting from breach of the written limited warranty.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

Plaintiff failed to timely revoke acceptance.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

Plaintiff failed to notify FCA US LLC of her election to revoke acceptance.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

Plaintiff failed to notify FCA US LLC of the alleged defects within a reasonable period

of time.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

Plaintiff failed to inspect the vehicle within a reasonable period of time and, therefore, is

barred by the doctrine of laches from rescinding the contract.

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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

Plaintiff has accepted the vehicle by failing to properly reject it.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE

Plaintiff has accepted the vehicle and is not entitled to rescission or to revoke acceptance

because she has performed acts inconsistent with FCA US LLC's ownership, and exercised

dominion and control over the vehicle. Should the court determine that Plaintiff’s alleged

revocation was proper, FCA US LLC is entitled to an offset for Plaintiff’s use of the vehicle.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to notify FCA US LLC of her revocation of acceptance within a

reasonable time after discovery of the grounds for revocation.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to offer to tender the vehicle to FCA US LLC. Thus, as a matter of law,

Plaintiff fails to state a cause of action for rescission, rejection, and/or revocation of acceptance.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE

The vehicle was not non-conforming at the time of purchase. Therefore, Plaintiff fails to

state a cause of action for rescission, rejection, and/or revocation of acceptance.

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE

Upon information and belief, Plaintiff or a third-party modified or altered the vehicle

after its sale. Therefore, as a matter of law, she fails to state a cause of action for rescission,

rejection, and/or revocation of acceptance.

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE

The vehicle does not have any defects that alone or cumulatively substantially impair its

use, value or safety to Plaintiff.

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AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE

Upon information and belief, any defects in the vehicle were caused by Plaintiff’s abuse,

neglect, or unauthorized modification or alteration of the motor vehicle by Plaintiff or a third

party.

AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE

Plaintiff has failed to mitigate her damages.

AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE

Upon information and belief, Plaintiff is no longer in possession of the vehicle.

Therefore, as a matter of law, she fails to state a cause of action for rescission, rejection, or

revocation of acceptance.

AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff has failed and/or has refused to allow FCA US LLC any opportunity to cure the

alleged defect or any alleged breach of warranty. Therefore, Plaintiff fails to state a cause of

action for breach of warranty or for revocation of acceptance.

AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff failed and/or refused to allow FCA US LLC any opportunity to repair the

vehicle's alleged defects or cure any alleged breach of warranty. Therefore, Plaintiff has failed to

satisfy a condition prerequisite to a Magnuson-Moss claim.

AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE

FCA US LLC's written limited warranty excludes damage, defects, or failure resulting

from the alteration or modification to the vehicle's original equipment as manufactured or

assembled by FCA US LLC.

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AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE

Plaintiff’s verified complaint is, or may be, barred by the Statute of Limitations.

AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE

FCA US LLC has no obligation to modify or alter the vehicle to address a design

characteristic of the vehicle which is not to the liking of Plaintiff.

AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff has reaccepted the vehicle following the alleged revocation and, therefore, is not

entitled to the revocation remedy.

AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE

To the extent the vehicle is leased by Plaintiff, the Magnuson-Moss Warranty Act is not

applicable.

AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Plaintiff lacks standing to sue.

AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE

The first count fails to state a cause of action under GBL § 198-a. FCA US LLC did not

have a reasonable opportunity to repair the vehicle.

AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE

The first count fails to state a cause of action under GBL § 198-a. All defects, non-

conformities, or conditions have been repaired.

AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE

The first count fails to state a cause of action under GBL § 198-a. The vehicle does not

have any defect, non-conformity, or condition that substantially impairs its value.

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AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE

The first count fails to state a cause of action under GBL § 198-a. Upon information and

belief, the vehicle is primarily used for business purposes.

WHEREFORE, FCA US LLC hereby demands judgment:

i. Dismissing Plaintiff’s verified complaint; and

ii. For costs, interest, disbursements, and attorneys' fees incurred herein.

Dated: Albany, New York
August 14, 2023

/s/ Jon B. Waldorf
JON B. WALDORF, ESQUIRE
ROSEWALDORF PLLC
Attorney for Defendant,
FCA US LLC
501 New Karner Road
Albany, New York 12205
(518) 869-9200

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FILED: WARREN COUNTY CLERK 08/14/2023 03:08 PM INDEX NO. EF2023-71461
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TO: KIMMEL & SILVERMAN, P.C.
Robert M. Silverman, Esquire
1001 Avenue of the Americas
12th Floor
New York, New York 10018
(1-800) 536-6652

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FILED: WARREN COUNTY CLERK 08/14/2023 03:08 PM INDEX NO. EF2023-71461
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/14/2023

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FILED: WARREN COUNTY CLERK 08/14/2023 03:08 PM INDEX NO. EF2023-71461
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/14/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
______________________________________________
JOANNE BURNS,

Plaintiff,

-against-
Index No.: EF2023-71461
FCA US LLC,

Defendant.
________________________________________________

CERTIFICATE OF SERVICE

I, Jon B. Waldorf, Esquire, do hereby certify that I am the attorney for Defendant FCA

US LLC in the within action; that I am duly authorized to make this certification, and that on this

14th day of August, 2023, I electronically filed the foregoing with the Clerk of Court using the

NYSCEF system, which will send notification of such filing to the following:

KIMMEL & SILVERMAN, P.C.
Robert M. Silverman, Esquire
1001 Avenue of the Americas
12th Floor
New York, New York 10018
ediscovery@lemonlaw.com

/s/ Jon B. Waldorf
Jon B. Waldorf, Esquire
J:\Data\Chrysler\Matter\62078 Burns\Verified Answer.doc

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Answer: Joanne Burns v. Fca Us Llc

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