Perel v Eagletronics

[*1] Perel v Eagletronics 2006 NY Slip Op 50565(U) [11 Misc 3d 1075(A)] Decided on March 31, 2006 Civil Court Of The City Of New York, Kings County Thomas, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2006
Civil Court of the City of New York, Kings County

MIRIAM T. PEREL, Plaintiff,

against

EAGLETRONICS, Defendant.



SCK 5467/2005



The claimant was pro so: Miriam T. Perel, of 3601 Kings Highway, Apt. B6, Brooklyn, New York 11234.

The defendant's agent was John Bruh, of Eagletronics, 1467-39th Street, Brooklyn, New York 11218.

Delores J. Thomas, J.

Claimant sues to recover the purchase price of $205.90 for an air conditioner purchased from defendant on June 26, 2005 and associated cost/disbursements of $ 84.10 for a total of $290.00.

The undisputed facts show claimant purchased an air conditioner from defendant; took it home and it did not work. Claimant employed Ronald Goldsmith, a repair man to look at the appliance. Mr. Goldsmith determined that the fan motor was defective; he assisted claimant in taking the air conditioner back to defendant. Defendant refused to replace the air conditioner or refund claimant's money; the air conditioner was left at defendant's store and is still there somewhere. Thereafter claimant purchased an air conditioner from P.C. Richards for $184.17.

Defendant defends this action on the basis that on its Invoice and Sales Receipt at the very bottom on both the following appears:

No Returns or Exchanges on: Major appliances, Air Conditioners,

TV/Video Items, Digital cameras, or any open Audio Equipment.

Thus defendant argues that claimant's only remedy is to pursue relief under the manufacture warranty provided by GE for the air conditioner. Defendant alleges that the above policy is displayed in the store but submits no evidence of the posting of its policy in the store. There is no evidence that claimant saw such a notice, assuming one is posted, or saw what was indicated on the receipt and invoice.

The General Business Law ("GBL") § 218-a(1) compels "retail mercantile establishments" to post their refund policies "conspicuously". Failure to do so entitles a purchaser, who has neither used nor damaged the goods to receive, up to twenty days from the date of purchase, at the purchase's option, a cash refund or store credit. If the goods are defective and the defect breaches the warranty of merchantability of the Uniform Commercial Code

(" UCC") § 2-314, the seller must return the purchaser's money pursuant to UCC § 2-714, notwithstanding a no-refund policy that is otherwise enforceable (Baker v. Burlington Coat Factory Warehouse, 175 Misc 2d 951 [Yonkers Cty. Ct. 1998]).

UCC § 2-314 codifies the implied warranty of merchantability by providing a warranty that the goods shall be merchantable and said warranty is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. "Merchantable goods must be fit for the ordinary purpose for which such goods are use". Should there be a breach of the implied warranty of merchantability then consumers may recover all appropriate damages including the [*2]purchase price in cash (UCC § 2-714).

In the instant case, defendant is a merchant contemplated under both the UCC and the GBL. The air conditioner was not fit for the purpose for which it was purchased. It did not work and thus did not serve to cool claimant's home. Therefore the warranty of merchantability was breached. Additionally, defendant has failed to show a "conspicuous" posting of its refund policy. The small lettering on the bottom on the receipt and invoice which is only viewable after the item(s) has been purchased and the sale consummated does not serve as "conspicuous" posting of the policy. Furthermore, the lettering is tiny and insufficient even if the receipt or invoice was provided prior to the consummation of the sale. The evidence is clear, the air conditioner did not work when claimant brought it home and tried to use it. Claimant promptly returned the air conditioner and should have been given at her option a cash refund of the money paid as the purchase price or a store credit. Claimant is entitled to recover the purchase price of the air condition and any other appropriate damages.

Accordingly, claimant is awarded the purchase price plus disbursement for a total of $290.00. This constitutes the decision and judgment of the Court.

DATED: March 31, 2006

Brooklyn, New York

DELORES J. THOMAS

Judge Civil Court