Estruch v. Volkswagenwerk, AG.

Order unanimously affirmed, without costs. Memorandum: For reasons stated in its memorandum decision Special Term properly dismissed plaintiffs’ causes of action for negligence and property damage based on alleged defects and breakdowns in plaintiffs’ Volkswagen Rabbit automobiles. Plaintiffs’ claims arose out of the failure of the automobiles to perform as promised and their remedy is not in tort but in contract (see Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5, 27; Hole v General Motors Corp., 83 AD2d 715; Queensbury Union Free School Dist. v Walter Corp., 94 AD2d 834). We also affirm dismissal of the causes of action based on subdivision (h) of section 349 and subdivision 3 of section 350-d of the General Business Law (see Burns v Volkswagen of Amer. [appeal No. 1], 97 AD2d 977). We reject plaintiffs’ argument that the pleadings, including the responses to the interrogatories, are sufficient to raise triable questions of fact concerning damages arising from reliance on representations made by defendants after June 19, 1980 (the effective date of General Business Law, § 349, subd [h]; § 350-d, subd 3). (Appeal from order of Supreme Court, Monroe County, Siracuse, J. — dismiss causes of action.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.