Full Case Name:  Regina M. O'ROURKE, Claimant, v. AMERICAN KENNELS, Defendant

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Country of Origin:  United States Court Name:  N.Y.City Civ.Ct. Primary Citation:  7 Misc.3d 1018(A) (N.Y. 2005) Date of Decision:  Wednesday, April 27, 2005 Judge Name:  MATTHEW F. COOPER, J. Jurisdiction Level:  New York Alternate Citation:  801 N.Y.S.2d 237 (Table), 2005 WL 1026955 (N.Y.City Civ.Ct.), 2005 N.Y. Slip Op. 50656(U) Unpublished Disposition Judges:  J. MATTHEW F. COOPER Attorneys:  (none - small claims) Docket Num:  No. S.C. 3295/04

In this highly entertaining Small Claims case, claimant seeks to recover the purchase price of her dog, Little Miss Muffet. The issue presented, in large part, concerns the dog's weight. Claimant contends that Muffet was supposed to be a "teacup dog." At eight pounds, she is well above the five pounds that is considered the weight limit for a "teacup" Maltese. Plaintiff paid an additional $1,000 above the standard $1,500 to purchase the smaller variety of Maltese. Plaintiff was awarded the differential in price, but not veterinary fees for a knee condition that developed after the warranty protections expired in the purchase agreement. 

***1 In this Small Claims case, claimant seeks to recover the purchase price of her dog, Little Miss Muffet. The issue presented, in large part, concerns the dog's weight. Claimant contends that Muffet was supposed to be a "teacup dog." And whereas we know from the nursery rhyme that it's quite all right for a little teapot to be "short and stout," it's apparently a different story for a teacup or at least for a teacup dog. The short is fine, but the stout is most definitely out.

Little Miss Muffet is a Maltese. The Maltese is a "toy" breed that generally weighs between four and seven pounds. It is known for its long, white, silky coat, a friendly disposition, and being favored by celebrity owners like Elizabeth Taylor. The defendant, American Kennels, is a pet store on Manhattan's Upper East Side. Despite the name, the store has no connection with the American Kennel Club, the organization that brings us the famous Westminster Dog Show and polices the purity of the pedigrees.

Claimant bought Muffet from defendant on April 19, 2003. At that time, the dog was two months old and weighed just over two pounds. As happens with puppies, Muffet grew substantially over the next year. The problem is that she grew larger than claimant expected or wanted.

Muffet now weighs eight pounds. Though not exactly the Kirstie Alley of the dog world, she is well above the five pounds that is considered the weight limit for a "teacup" Maltese. The sales agreement offered into evidence by claimant refers to the dog simply as a Maltese, but claimant's credible testimony establishes that defendant specifically represented that the dog would be small enough to bear the teacup designation. The testimony further demonstrates that Little Miss Muffet's size is attributable not to an excessive consumption of curds 'n whey (or more likely, Kibbles 'n Bits), but instead to her general genetic makeup. In short, Muffet was bred to be a plain old tiny standard Maltese and not a teeny tiny teacup Maltese.

It must be said that there are those who have trouble understanding why anyone would want a dog weighing only eight pounds (the size of a small cat), let alone one weighing five pounds (the size of a well-fed New York rat). A dog like that might be considered too small to do real dog-like things, such as racing through the woods in hot pursuit of a squirrel, snatching a frisbee out of the air in a single bound, or chewing the leg off a dining room table. On the other hand, it seems that small breed dogs have the advantage over their more sizeable canine counterparts when it comes to fitting comfortably within the confines of a Manhattan studio apartment, unashamedly sporting a little Burberry doggie coat with faux-fur-lined collar and matching booties, or being smuggled onto public transportation cleverly concealed in a tote bag.

Whatever the reason may be, the fact remains that toy breeds such as the Maltese are like cell phones or Japanese bonsai trees: the smaller they are, the more they cost. As the evidence presented at trial made clear, claimant could have readily purchased a standard Maltese from defendant for $1,500. Instead, she opted to purchase Little Miss Muffet for $2,500. The price differential was based on the representation that Muffet was indeed a five pound teacup dog. Muffet turned out to be an eight pound dog. The end result is that claimant paid a $1,000 premium for Muffet and received three pounds more dog than she bargained for.

***2 The court finds that because Muffet is too big to be a teacup dog, she is not the type of Maltese that claimant was led to believe she was purchasing. As such, Little Miss Muffet, as cute as she appears from the photographs in evidence and as harsh as it may sound, constitutes nonconforming commercial goods under Article 2 of the Uniform Commercial Code. See Dempsey v. Rosenthal d/b/a American Kennels, 121 Misc.2d 612, 468 N.Y.S.2d 441 (N.Y. Civ.Ct.1983) ("Mr. Dunphy," a pedigreed white poodle, held to be defective and nonmerchantable because he had an undescended testicle); White Devon Farm v. Stahl, 88 Misc.2d 961, 389 N.Y.S.2d 724 (N.Y.Sup.Ct.1976) ("Meadow Paige," a stallion, determined to be nonconforming with contract of sale because his semen was "not within normal acceptable standards" and he was not "terribly interested in breeding").

The plaintiffs in Dempsey and White Devon Farm rescinded the sales and were, by and large, awarded the full purchase price of their respective animals. Claimant is not entitled to the same relief. This is because claimant, who had bonded with her pet over time, did not seek to revoke her acceptance and return the "goods" once she discovered that Muffet was not destined to be a teacup dog. See U.C.C. § 2-608; see also Dempsey, 121 Misc.2d 612 at 620, 468 N.Y.S.2d 441. Recognizing, however, that it is no small matter for an owner to give up a household pet, and guided by the principles of substantial justice, the court will not deprive claimant of a remedy where she was misled as to the dog's teacup status. N.Y.C.C.A. § 1804; see also Roberts v. Melendez, d/b/a Le Petit Puppy, 6 Misc.3d 1015A (N.Y. Civ.Ct.2005). The appropriate resolution is to allow claimant to retain Muffet and to recover the $1,000, plus applicable sales tax, that she overpaid as a result of defendant's misrepresentation.

Claimant also seeks to recover from defendant on the basis that Little Miss Muffet's problems concern not only her heft but her health. Almost a year after her purchase, the dog developed luxating patella, a congenital knee disease that frequently affects Maltese and other toy breeds. Muffet subsequently underwent surgery to correct the condition. As a result, claimant contends she is entitled to a refund of the purchase price or, at least, to recover the veterinarian fees she expended.

The sales agreement provides various warranties as to the health of the dog. They are in the form of "2 Week," "60 Day" and "1 Year" guaranties. The first guaranty mirrors the protection afforded purchasers of dogs and cats under General Business Law section 753. It allows the purchaser to recover the purchase price and veterinarian fees if it is determined within the first two weeks after the sale that the pet was unfit for purchase due to illness. The other two guaranties the "60 Day" and "1 Year" are in addition to and extend beyond the protection that the statute provides.

Because claimant's dog did not develop luxating patella until many months after her purchase, the applicable health warranty is the "1 year" guaranty. It provides that if the dog is found to have a "serious congenital condition" within the one year period, then the purchaser can exchange the dog for "another of up to equal value." It expressly excludes reimbursement for veterinary bills.

***3 There was no expert medical testimony given at trial, and there is no evidence in the record to support a finding that luxating patella, albeit congenital, constitutes a serious condition. Instead, it appears that it is a routine affliction, one that may very well be a by-product of breeding dogs to be small. It is acknowledged that highly bred pedigrees have a predisposition towards certain health conditions. For dogs like Muffet, it seems that knee problems often come as an unfortunate part of the small-dog genetic package.

Even if luxating patella could be found to be a serious condition, the remedy, as specifically set forth in the "1 Year" guaranty, is limited to an exchange of the dog for a new one. Claimant, of course, was never interested in replacing Muffet with another dog. Having chosen not to invoke the remedy, claimant has no basis to recover from defendant on the ground that her pet developed luxating patella. This is particularly so in that there is no suggestion that defendant knew of the condition at the time of sale or that it failed to provide any of the health disclosures required by General Business Law section § 753-b(2).

In light of the foregoing, claimant is awarded $1,000, representing the teacup differential improperly charged by defendant, along with an additional $82.50 for the sales tax. Accordingly, the clerk is directed to enter judgment in favor of claimant and against defendant in the sum of $1,082.50, plus interest from April 19, 2003, the date of the sale.

Finally, as a kind of coda to this case - a case that might be termed at best a tempest in a teacup and at worst the teacup dog scandal - mention should be made of the one uplifting note that resonates ever so sweetly. That note is claimant's devotion to her pet. Little Miss Muffet may be overweight and have bad knees, but she is loved. We should all be so lucky.

This constitutes the decision and order of the court.

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