Osipova v Dom Mebeli of NY, Inc.

[*1] Osipova v Dom Mebeli of NY, Inc. 2009 NY Slip Op 51728(U) [24 Misc 3d 142(A)] Decided on July 29, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1870 K C.

Lyudmila Osipova, Appellant,

against

Dom Mebeli of NY, Inc., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered July 16, 2008. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and judgment directed to be entered in favor of plaintiff in the principal sum of $500.

Plaintiff brought this small claims action seeking the return of a $500 down payment she had made when she had ordered a wall unit from defendant. A signed written contract reflected the transaction and indicated the specific furniture that plaintiff had ordered. Plaintiff was subsequently advised that the furniture she had selected was not available. Although differing testimony was presented as to whether or not plaintiff then changed her order, it was uncontested that plaintiff never signed a contract or memorandum reflecting a modification of her original order. Defendant's owner testified that defendant nevertheless thereafter attempted unsuccessfully to deliver furniture to plaintiff — not the furniture described in the signed written contract with plaintiff, but furniture defendant claimed plaintiff had subsequently orally selected instead — and that he was unwilling to refund the down payment to plaintiff. At trial, plaintiff raised as an issue the absence of a writing signed by her memorializing a change-order. After expressing a belief based on the demeanor and credibility of the witnesses that plaintiff had gone to the store and chosen different furniture, the Civil Court concluded that plaintiff had failed to make out a prima facie case entitling her to a refund of her down payment, and dismissed the action.

The evidence established that the price of the furniture in question exceeded $500. In view of the informal procedure and pleading rules governing small claims cases (see CCA 1804; see also Walker v Mergler, 2001 NY Slip Op 40613[U] [App Term, 1st Dept 2001]), plaintiff's [*2]argument respecting the absence of a signed change-order was sufficient to raise the issue of the statute of frauds, pursuant to which signed writings were required both for the contract for the sale of the furniture and any agreements modifying the sales contract (see UCC 2-201 [1]; 2-209 [3]). As it was uncontested that the original written contract described the furniture plaintiff ordered, that plaintiff never signed a written modification to the contract of sale demonstrating her assent to accept furniture other than that which she originally ordered, and that defendant was unable to deliver to plaintiff the furniture she originally contracted to buy, plaintiff made out a prima facie case for her entitlement to a refund of her down payment (see UCC 2-711). Defendant failed to rebut this case, and there has been no claim that any of the exceptions to the statute of frauds would apply herein (see generally UCC 2-201 [3]).

Since substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1807), we reverse the judgment of the Civil Court and direct the entry of judgment in favor of plaintiff in the principal sum of $500.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009