Cahill v Blume
Annotate this CaseDecided on June 14, 2005
Civil Court of the City of New York, Richmond County
Maria P. Cahill, Claimant
against
Ivan Blume d/b/a Stillwell Pets N Quality Pups, Defendant
SCR 647/2005
Pro Se Plaintiff
Pro Se Defendant
JUDITH R. McMAHON, J.
Maria Cahill instituted the instant Small Claims action alleging that Ivan Blume, doing business as Stillwell Pets n Quality Pups, breached their contract by selling her a puppy with multiple congenital disorders. She is seeking damages for the surgery needed to correct the puppy's orthopedic condition of hip dysplasia. A trial convened on June 2, 2005.
On September 3, 2004, Maria Cahill purchased a three month old long-haired Chihuahua, Lexi, from Mr. Blume, doing business as Stillwell Pets N Quality Pups. Six months later, in March 2005, the puppy began limping and was incapable of bearing weight on her rear left leg. After an examination and tests performed by her veterinarian, John F. Sangiorgio, D.V.M of the Veterinary Center located on Staten Island, New York, Lexi was diagnosed with multiple orthopedic problems, including hip dysplasia, and an ocular difficulty. The veterinarian suggested three surgeries and possibly a fourth surgery and estimated the cost to be approximately $2,000.00 to $5,000.00. Moreover, Dr. Sangiorgio estimated the cost for surgery to correct the hip dysplasia to be between $2,493.00 to $3,265. (Pl. Exh. 2). Additionally, a Veterinary Certification of Unfitness of Dog or Cat for Purchase signed by John F. Sangiorgio, D.V.M. was admitted into evidence.
Thereafter, Mrs. Cahill informed Defendant Blume of the orthopedic problems that her puppy was suffering from, in particular, the hip dysplasia.
[*2]
The contract between the parties dated September 3, 2004 provided for a one-year guarantee for the congenital condition of hip dysplasia and states, in relevant part:
There is a one year guarantee on the following congenital problems.
Severe Hyp (sic) Displasia (sic), Bad Heart, Liver and Kidneys. For this
guarantee to be valid a customer cannot euthanize a dog if expecting a
seller to replace a dog as most breeders want their dogs back. Also
the customer must submit, when needed, x-rays or blood tests, etc.
to be conclusive of a congenital problem. Under no circumstances
will the seller be responsible for any surgery which customer may
authorize their vet to perform. The above guarantees in this contract
are only valid to the original purchaser. (Pl. Exh. 1).
According to Mrs. Cahill, Mr. Blume refused to pay for the surgery and suggested that Lexi be returned to him and replaced with a new puppy. Mrs. Cahill refused to return Lexi since she and her family had become attached to her.
Mr. Blume did not appear at trial; rather a friend, Vincent Failla represented the defendant pursuant to Lower Court Acts §1815, which permits a non-attorney to represent a defendant. Mr. Failla confirmed that Mr. Blume would not undertake the costs of the surgery. Relying on Article 35-D, § 753 of the General Business Law, Mr. Failla stated that the maximum amount Mrs. Cahill could recover is the price that she had paid for the puppy.
It has long been held that the Courts must examine the specific language of a contract when deciding matters arising from an alleged breach of contract. Liebhafsky v. Construction Assocs., Inc., 62 NY2d 439, 478 NYS2d 252 (1984); Saranac Central School District v. Sweet Associates, Inc., 253 AD2d 566, NYS2d 869 (3rd Dept. 1998), leave to appeal denied 92 NY2d 820, 708 NE 178, 685 NYS2d 421 (1999).
The language of the subject contract clearly sets forth what a purchaser may not do when faced with a puppy with congenital problems. However, it does not delineate the seller's responsibilities to the purchaser or provide any unequivocal recourse for the purchaser. "A contract is unambiguous if the language it uses has 'a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.'" Computer Associates International, Inc. v. US Balloon Manufacturing Co., Inc., 10 AD3d 699, 782 NYS2d 117 (2nd Dept. 2004), quoting Breed v. Insurance Co. of North America, 46 NY2d 351, 413 NYS2d 352 . The terms of the guarantee in the foregoing contract cannot be ascertained by a reading of the contract language, rendering it ambiguous. "In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language." [*3]Jacobsen v. Sassower, 66 NY2d 991, 489 NE2d 1283, 499 NYS2d 381 (1985). Accordingly, the contract at bar must be strictly construed against the preparer of the contract, Defendant Blume. Uribe v. Merchant's Bank of New York, 91 NY2d 336, 693 NE2d 740, 670 NYS2d 393 (1998); Jacobsen v. Sassower, 66 NY2d 991, 489 NE2d 1283, 499 NYS2d 381 (1985); Garcia v. American General Life Insurance Company of New York, 264 AD2d 808, 695 NYS2d 420 (2nd Dept. 1999).
Article 35-B of the General Business Law governs the sale of cats and dogs and is colloquially referred to as "The Pet Shop Lemon Law". General Business Law §753(1) provides purchasers with a remedy if ,within fourteen days of the purchase of a cat or dog, a licensed veterinarian determines and officially certifies the animal to be "unfit for purchase" due to illness, significant congenital malformation or contagious or infective disease. Under §753(1), the purchaser has several options: the right to return the animal and receive a refund; the right to return the animal and receive a replacement animal; the right to retain the animal and be reimbursed veterinary costs incurred for the purpose of curing or attempting to cure the animal. The statute states that the amount reimbursable for veterinary costs shall not exceed the purchase price of the animal. General Business Law §753(1)( c).
The sale of dogs and cats also comes within the purview of Article 2 of the Uniform Commercial Code. A litany of cases have held that dogs are "goods" within the meaning of §2-105 and pet stores are "merchants" pursuant to §2-104 of the Uniform Commercial Code. O'Rourke v. American Kennels, 7 Misc 3d 1018(A), 2005 WL 1026955 (NY.Civ. Ct. 2005); Saxton v. Pets Warehouse, Inc., 180 Misc2d 377, 691 NYS2d 872 (App.Term, 2nd Dept. 1999); Sacco v. Tate, 175 Misc2d 901, 672 NYS2d 618 (App.Term, 2nd Dept. 1998), Nuijens v. Novy, 144 Misc2d 453, 543 NYS2d 887 (Wayne County 1989); Dempsey v. Rosenthal d/b/a American Kennels, 121 Misc2d 612, 468 NYS2d 441 (NY Civ. Ct. 1983); Bazzini v. Garrant, 116 Misc2d 119, 455 NYS2d 77 (Dist.Ct., Sixth Dist. Suffolk County 1982).
Section 2-714 of the Uniform Commercial Code provides that
where the buyer has accepted goods and given notification...he may recover
as damages for any non-conformity of tender the loss resulting in the
ordinary course of events from the seller's breach as determined
in any manner which is reasonable. UCC §2-714
Pursuant to statute, Lexi may be considered a "non-conforming good" in that Mrs. Cahill did not get what she bargained for when Lexi was purchased, to wit: a healthy dog. Sacco v. Tate, 175 Misc2d 901, 672 NYS2d 618 (App.Term, 2nd Dept. 1998); see also, O'Rourke v. American Kennels, 7 Misc 3d 1018(A), 2005 WL 1026955 (NY.Civ. Ct. 2005) ("Little Miss Muffet", a Maltese, held to be a non-conforming good because the purchaser had paid a premium for a Teacup Maltese and received a standard Maltese). [*4]
Additionally, § 2-314(2)( c)(d) of the Uniform Commercial Code mandates that the "goods pass without objection in the trade under the contract description" and "are fit for ordinary purposes for which such goods are used." All contracts are deemed to contain this implied warranty of merchantability unless the contract expressly excludes or modifies such warranty. UCC §2-616(2); Dempsey v. Rosenthal, 121 Misc2d 612, 468 NYS2d 441 (NY Civ. Ct. 1983). It is quite obvious that Lexi could not "pass without objection" inasmuch as a licensed veterinarian deemed her to be "unfit" for sale due to her multiple congenital defects, which included such multiple malformations as bilateral luxating patellar, Legg Perth syndrome on the left side, naso-lacramal duct on the left side. (Pl. Exh. 4). Nor is Lexi fit for the "ordinary purpose" for which she was purchased. At trial, Mrs. Cahill testified that her dog cannot walk, run and leap without pain and discomfort. See, Bazzini v. Garrant, 116 Misc2d 119, 455 NYS2d 77 (Toucan who died two weeks after being purchased deemed unfit for ordinary purpose in that "at least one purpose is to stay around as a live bird." Id. at 122).
Clearly, the defendant breached the subject contract and Mrs. Cahill was damaged as a result of that breach. Lexi, regrettably, is an adorable puppy with many congenital orthopedic and ocular problems. The Claimant did not receive what she had bargained and paid for, a healthy puppy. Moreover, although Mr. Blume sold the puppy with the congenital maladies to the Claimant, it must be noted that he did not perform any affirmative act that caused these particular difficulties in this particular dog.
The amount of damages to be awarded the Claimant may be gleaned from the aforementioned statutes. Article 35-D of the General Business Law allows for a return and replacement of the animal or a reimbursement of veterinary costs not exceeding the purchase price of the dog or cat. The Uniform Commercial Code , Section 2-714(2) defines the measure of damages available for breach of warranty as "the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they been warranted...". In the case at bar, the Claimant paid $760.37 for a healthy dog, but received a puppy with numerous congenital ailments. Clearly, the implied warranty of merchantability has been breached. In cases of similar circumstances, Courts have repeatedly refunded the whole of the purchase price or premium paid for the animal. See, O'Rourke v. American Kennels, 7 Misc 3d 1018(A), 2005 WL 1026955 (NY.Civ. Ct. 2005); Dempsey v. Rosenthal, 121 Misc2d 612, 468 NYS2d 441 (NY Civ. Ct. 1983); Bazzini v. Garrant, 116 Misc2d 119, 455 NYS2d 77 (Dist.Ct., Sixth Dist. Suffolk County 1982).
Accordingly, judgment is hereby awarded to the Claimant Maria P. Cahill against the Defendant Ivan Blume d/b/a Stillwell Pets N Quality Pups in the amount of $760.37 plus interest from September 3, 2004. Mrs. Cahill shall retain possession of her dog.
This is the Decision and Order of the Court.
Court Attorney to notify both sides.
Dated: June 14, 2005 Judith R. McMahon Judge, Civil Court
Staten Island, NY
ASN by_____on____
APPEARANCES
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