Roberts v Melendez
Annotate this CaseDecided on January 27, 2005
Civil Court of the City of New York, New York County
COURTNEY ROBERTS, Plaintiff,
against
NARCISO MELENDEZ and JIMMY CLAUDIO d/b/a LE PETIT PUPPY, Defendants.
SCNY 3066/04-41
Eileen A. Rakower, J.
This small claims proceeding was tried before this Court on January 19, 2005. The Court has considered the testimony and evidence adduced at trial, as well as plaintiff's "Trial Memorandum of Points and Authorities" dated January 18, 2005. Plaintiff, who was represented by an attorney, testified on her own behalf. Narciso Melendez appeared for himself and as Le Petit Puppy. The Court makes the following findings of fact and conclusions of law:
On October 27, 2003, plaintiff Courtney Roberts, purchased from defendant Le Petit Puppy, an eleven week old male dachshund puppy (Identification number D0107) for $1200. The parties entered into a sales agreement for this purchase. The written sales agreement was presented to the Court without objection. Ms. Roberts also received a dog information sheet along with a packet. Ms. Roberts presented without objection only the information sheet to the court. The information sheet revealed that Le Petit Puppy received the dog on October 15, 2003, and listed seven vaccinations administered to the dog as follows: Panacur de-worming on August 15, 2003, Progard CPV on September 17, 2003, Panacur de-worming on September 17, 2003, Vanguard DA2MP on September 24, 2003, Progard KC on October 1, 2003, Panacur de-worming on October 1, 2003, and Progard Puppy 7 DPV on October 5, 2003. Testimony revealed that Ms. Roberts had been to Le Petit Puppy on October 22, 2003, 5 days before the purchase of the dog, and made a separate purchase of a cat. She recalls getting a packet and paperwork in conjunction with that purchase as well. [*2]
Ms. Roberts took her newly purchased dog on an airplane to California. The animal was seen by her veterinarian in California on October 28, 2003, the day after she purchased the dog, as evidenced by medical records which were presented to the Court without objection. Plaintiff's veterinarian, Janet C. Lowery, DVM, administered a DHPP vaccine at that time. Dr. Lowery noted the dog to be "normal" in all of the following categories: attitude/appearance, oral cavity/teeth, mucous membranes, eyes, ears, cardiovascular, respiratory, gastrointestinal, musculoskeletal and nervous system. She noted that plaintiff reported that she had just gotten the dog the day before from a New York pet store and that the dog was sneezing a bit. Dr. Lowery's notes also report the doctor's inability to palpate one of the dog's testicles and her witnessing one flea. She directed the use of Advantage, an anti-flea medication.
The following day, on October 29, 2003, the dog presented with illness and was admitted to Dr. Lowery's care at her facility, Mid-Peninsula Animal Hospital. Over the course of the next days, the facility treated the puppy. At that point, the dog's white blood cell count was diminishing, and he appeared to show signs of Parvo. According to the medical records, a Parvo test was done "which was positive at that time, - however, the fact that he was vaccinated the day prior potentially negates the test results."
Ms. Roberts supplied to the Court without objection a letter from Dr. Lowery to Le Petit Puppy, dated December 1, 2003, which posits that the vaccination schedule may well have compromised the dog's immune system. Nevertheless, despite a fully disclosed vaccination schedule, Dr. Lowery also gave the dog a DHPP vaccine on October 28, 2003. While the animal could not be conclusively diagnosed as having Parvo because of that particular vaccination, the dog exhibited clinical symptoms consistent with Parvo. The Court notes that none of the vaccines received by the dog were administered by Le Petit Puppy. Doctor Lowery concludes in her letter that "[b]ecause Parvo typically has a prepatent period of 5-7 days this puppy was infected with the virus at the time of purchase. Certainly there may have been no clinical signs present at the time to signal this or there may have been just the beginnings of lethargy and diminished appetite."
Dr. Lowery concedes in her December 1, 2003 letter that, "[She] certainly understand[s] that this is the type of situation where you, as a pet store, cannot be held responsible for knowing what wasn't yet apparent, but the fact is that you sold a [*3]puppy that had been exposed to and was incubating Parvovirus."
The dog was then transferred to another facility, The South Peninsula Vet Emergency Clinic ("SPVEC") on October 31, 2003. Upon the transfer to the SPVEC, Doctor Lowery ordered Clavomox to accompany the pet. Dr. Lowery's notes indicate that antibiotic was found later on the pharmacy counter and not taken with the pet to SPVEC. Plaintiff was supposedly credited with the cost of that medicine. While no clinical records from the SPVEC facility were made available, Dr. Lowery noted in her medical records that she had contact with them on November 2, 2003 and suggested adding a certain treatment. Her notes for November 3, 2003 state that the dog "was euthanized at SPVEC." Her notes state further that the dog was "not doing well - and not responding."
Some time after the dog was euthanized, Ms. Roberts contacted Le Petit Puppy for the first time to alert them that the dog had been ill, treated and put down, and gave them a copy of her veterinarian's report. She sought reimbursement for $1687 in hospital costs, $1755 in emergency bills and $1400 for the cost of her taking the dog to California.
The sales agreement submitted to the Court, which bears Ms. Roberts' signature, provides in relevant part that: I. All pets sold are covered by a 14(fourteen) day money-back warranty if a licensed veterinarian diagnoses the pet as unhealthy at the time of sale.II. Claims made under the above warranty must be accompanied by a statement from a veterinarian specifying, in detail, the medical conditions leading to his/her diagnosis. The seller, however, shave [sic] have the right to have the pet re-examined by another veterinarian...VI. Excepting appropriate provisions under the laws of the State of New York, the above 14 (fourteen) day money-back health warranty and one year serious congenital defects pet-replacement warranty shall constitute the only post-sale responsibility of Le Petit Puppy.[*4]
Ms. Roberts seeks by this action reimbursement for the cost of the dog, the medical costs for the dog's treatment, and the cost of transporting the dog to California. In addition, Ms. Roberts seeks attorney's fees on the ground that defendants violated certain disclosure provisions of the General Business Law (see, GEN. BUS. §349[a][h][McKinneys 2005]). Ms. Roberts provides without objection her credit card statement as proof of payment for the dog, but fails to provide any proof of payment of any medical bills submitted to the court.
Preliminarily, the Court dismisses plaintiff's claims against Jimmy Claudio, as no proof was brought out that connected any such individual to this matter. A business certificate was presented at trial that revealed that Le Petit Puppy is owned by Narciso Melendez. No Jimmy Claudio was involved in the subject sale and this name did not appear on any documents submitted to this Court.
Turning to plaintiff's claim that defendant Le Petit Puppy failed to make proper disclosures as required by New York State Law, Mr. Melendez testified that the packet given with the pet information sheet at the time of the dog's sale, which plaintiff admitted receiving, contained the required Notice of Rights. The Court credits the testimony of Mr. Melendez. Indeed, Ms. Roberts conceded she received other papers, but conveniently omitted those from what she brought to Court and could not recall their content. The Court does not, therefore, find that there were any deceptive practices that would warrant an award of attorney's fees.
The Court finds that the parties' contract clearly outlines the remedies available here. Those remedies mirror those provided by the General Business Law. GEN. BUS. §753et.seq., [Mckinneys 2005] Simply put, plaintiff could have contacted defendant and chosen one of a number of options involving the return of the dog, or keeping the dog while making the dog available for examination.
The question for this Court remains whether a purchaser may take advantage of a health warranty affording her reimbursement for the purchase price of the animal plus the cost of certification of the animal's unfitness for purchase, when that purchaser failed to afford the pet dealer the corresponding right to examine the animal?
Plaintiff, by her own admission, failed to notify defendant that the dog was ill, did not return the dog, and did not make the animal available so that the pet could be [*5]re-examined by another veterinarian (even one in California chosen by the dealer). While the law is sure to afford rights to the consumer, it also instills in them correlative duties, and provides a correlative right to the pet store.
Here defendant is at a disadvantage. Plaintiff used a New York City address when purchasing the animal, and promptly relocated to California. Many intervening variables could have affected the condition and health of the dog, such as a change in food, travel on an airplane, a disruption in environment, the new vaccine received in California, or administering Advantage to an 11 week old dog. Here, the pet store was not even notified of a problem until after the animal was euthanized, cremated and unavailable for examination. Indeed, Dr. Lowery was unable to confirm the illness, and was not even the doctor who last examined the animal prior to his euthanasia. Dr. Lowery had seen him more than two days before. No certification is provided from SPVEC, the last treating facility, that would shed light on the actual reasons for the dog's demise.
New York City Civil Court Act § 1804 authorizes this court to "conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or mentally ill person." New York City Civil Court Rules § 208.41(j) direct that the "court shall conduct the hearing in such manner as it deems best suited to discover the facts and to determine the justice of the case."
It is undisputed that the consumer never afforded the pet dealer the right to contest a demand for reimbursement, and failed to produce the animal for examination by a licensed veterinarian designated by such dealer. The Court notes that as a result, the pet dealer is also without recourse as against the breeder. Nevertheless, Ms. Roberts' sought care for her dog and such action should be encouraged. Thus, this Court finds that substantial justice would be attained by the parties sharing in the cost of the dog, namely the $1303.50 ($1200 plus tax of $103.50).
The clerk of the Court is directed to enter judgment in favor of claimant and against Narciso Melendez d/b/a Le Petit Puppy in the amount of $651.75 plus interest from the date of filing, June 17, 2004. [*6]
This constitutes the decision and order of the Court.
Dated: January 27, 2005________________________
Eileen A. Rakower
J.C.C.
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