Pelusio v. Mulye 52 A.D.2d 1045

Order and judgment unanimously reversed, with costs, and motion denied. Memorandum: In this action to rescind a contract for the purchase of an automobile on the ground of the buyer’s infancy, Special Term granted plaintiffs’ motion for summary judgment. Admittedly, the purported buyer, in whose name the receipts for the purchase price were made and to whom the certificate of registration was issued, was an infant. In opposition to the motion defendants allege that in fact the transaction was made between them and the infant’s father, the plaintiff herein; that he testdrove the vehicle, made the purchase and made the two payments for the purchase price; and that hence there is no right of rescission in the absence of proof of fraud or misrepresentation with respect to the automobile. Special Term held that because defendants did not controvert plaintiffs’ affidavit, receipts and certificate of registration by a presentation of other documentary proof, no question of fact exists, and so granted summary judgment. However, defendants’ only obligation in defense of the motion was to present a plausible issue of fact (Falk v Goodman, 7 NY2d 87, 91; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The sale was consummated orally, with certain documentary evidence thereof. Thus, the rule against the admission of oral evidence to vary the terms of a written agreement does not apply (see 7 Encyclopedia of New York Law, Contracts, § 2122). In any event, whether the parol evidence rule will permit defendants to prove their contention that the purchase was made by the plaintiff father is a question which should await the proof presented at a trial (Exchange Leasing Corp. v Bundy, 29 AD2d 828; and see Bourgeois v Celentano, 10 AD2d 824, lv to app den, 8 NY2d 708; Raybin v Raybin, 15 AD2d 679). (Appeal from order and judgment of Monroe Special Term—summary judgment—contract.) Present—Marsh, P. J., Cardamone, Dillon, Goldman and Witmer, JJ.