Case Details

Navigation

Full Site Search

Loading...

The navigation select boxes below will direct you to the selected page when you hit enter.

Topical Explanations

Primary Legal Materials

Select by Subject

Select by Species

Select Administrative Topic


World Law

Secondary Legal Materials

Great Apes and the Law

Great Apes and the Law

Maps of State Laws

Map of USA
Share |
New York Supreme Court, Appellate Term, Second Department

Saxton v. Pets Warehouse
New York
180 Misc.2d 377 (N.Y. 1999)


Case Details
Printable Version
Summary:  

In this small claims action, the plaintiff purchased an unhealthy dog from defendant that died soon after purchase.  The court held that the plaintiff is not limited to the remedies provided by General Business Law § 753 (1), which sets forth a consumer's right to a refund and/or reimbursement for certain expenses incurred in connection with the purchase of an unhealthy dog or cat, as plaintiff's dog came within the definition of "goods" as set forth in UCC 2-105 and defendant was a "merchant" within the meaning of UCC 2- 104 (1).  Accordingly, plaintiff could recover damages pursuant to UCC 2-714 on the theory that defendant breached the implied warranty of merchantability.  The case was remanded for a new trial to solely on the issue of damages limited to any sales tax paid by plaintiff that was not reimbursed by the insurance policy and the reasonable cost of veterinary expenses incurred.



Opinion of the Court:

OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed without costs and matter remanded to the court below for a new trial limited to the issue of damages.

Plaintiff commenced the instant small claims action to recover damages sustained by reason of the fact that the dog sold to her by defendant was not healthy and died soon after purchase. It is apparent from a review of the determination of the lower court that the court was of the opinion that the animal was unfit for purchase at the time of sale and that plaintiff acted reasonably in her care of the animal. While such a determination is supported by the evidence, the award by the lower court included damages for certain treatments which appear to be redundant, such as tests for the parvo virus. Further, the court improperly awarded plaintiff the purchase price of the animal when in fact she had been reimbursed for same by means of an insurance policy obtained through defendant. Under the circumstances, the matter should be remanded to the court below for a new trial limited to the issue of damages which include any sales tax paid by plaintiff which was not reimbursed by the insurance policy and the reasonable cost of veterinarian expenses incurred by plaintiff in the treatment of the animal.

We note that plaintiff is not limited to the remedies provided by subdivision (1) of section 753 of the General Business Law as the animal came within the definition of "goods" as set forth in UCC 2-105 and defendant was a "merchant" within the meaning of UCC 2-104 (1) (see, General Business Law § 753 [5]). Accordingly, plaintiff could recover damages pursuant to UCC 2- 714 on the theory that defendant breached the implied warranty of merchantability (see, UCC 2-314; Sacco v Tate, 175 Misc 2d 901).

DiPaola, P. J., Ingrassia and Levitt, JJ., concur.*379  

 

Top of Page
Share |