Kelso v. Lincoln First Bank, N.A.

Denman and Green, JJ. (dissenting).

We must dissent. The records of defendant Dorschel Buick, Inc. (Dorschel), establish that the odometer was altered while the vehicle was under its exclusive dominion and control. Dorschel claims that the alteration was the result of a clerical error which does not constitute intent to defraud necessary to subject it to statutory liability (see, 15 USC §§ 1984, 1989). The trial court held otherwise, however, finding that "Dorschel was the only party that had anything to gain by the alteration since it found itself in the position of having invested parts and labor in excess of One Thousand Two Hundred ($1,200.00) Dollars in the car which was about to be repossessed by Lincoln First Bank. It is reasonable to infer that the 'roll-back’ of the mileage may have induced Lincoln First Bank to agree to pay the Dorschel’s lien to obtain release of the car, since it gave Lincoln at least some assurance that their own lien would be satisfied at the repossession sale.” On appeal, County Court determined that the trial court’s decision "was supported by the testimony and exhibits.” In our view, the record on appeal provides no basis to overturn these findings. Accordingly, the order should be affirmed. (Appeal from order of Monroe County Court, Maloy, J.—fraud.) Present—Doerr, J. P., Den-man, Green, O’Donnell and Schnepp, JJ.