Miuccio v Puppy City, Inc.

[*1] Miuccio v Puppy City, Inc. 2009 NY Slip Op 50404(U) [22 Misc 3d 1132(A)] Decided on March 5, 2009 Civil Court Of The City Of New York, Richmond County Straniere, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2009
Civil Court of the City of New York, Richmond County

Jacqueline E. Miuccio, Claimant,

against

Puppy City, Inc., Defendant.



SCR 16401/08



APPEARANCES

PLAINTIFF:Jacqueline Miuccio

35 The Boulevard

Staten Island, NY 10314

DEFENDANT:Puppy City, inc

2539 Ocean Avenue

Brooklyn, NY 11229

Philip S. Straniere, J.

Claimant, Jacqueline Muccio, commenced this small claims action against the defendant, Puppy City, Inc., alleging that the defendant sold her an unhealthy puppy. A trial was held on January 8, 2009. Both sides appeared without counsel.

Claimant testified that she purchased a Shitzu-Maltese puppy from the defendant on April 24, 2008 at a cost of $937.54. Within a week the dog was lethargic, had diarrhea and blood in his stool. On April 30, 2008, claimant brought the dog to a local veterinarian who concluded that the dog had parasites and kennel cough. The dog was treated by the veterinarian. On April 30, 2008, the veterinarian issued a letter stating that the dog was "unfit for purchase." Claimant stated that she wanted to keep the dog but wanted her money back. The defendant stated that the claimant called about the dog's health but never brought it back to be examined by the defendant's veterinarian.

General Business Law Article 35-D regulates the sale of dogs and cats in New York City. GBL §753 provides: Sale of animal. 1. If within fourteen business days following the sale of an animal subject to this article or receipt of the written notice required by section seven hundred fifty-four of this article, whichever occurred last, a veterinarian of the consumer's choosing, licensed by a state certifies such animal to be unfit for purchase due to illness, congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease, the pet dealer shall afford the consumer the right to choose one of the following options:(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;[*2](b) The right to return the animal and receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or( c) The right to retain the animal and receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.The commissioner by regulations shall prescribe a form for, and the content of, the certification that an animal is unfit for purchase, which shall be provided by an examining veterinarian to a consumer upon the examination of an animal which is subject to the provisions of this section. Such form shall include, but not be limited to, information which identified the type of animal, the owner, the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment. Such form shall also include the notice prescribed in

section seven hundred forty-three of this article.[FN1]

GBL§753(3) provides: "A veterinary finding of intestinal parasites shall not be grounds for declaring the animal unfit for sale unless the animal is clinically ill due to such condition...."

Judgment for defendant on claimant's cause of action for the sale of an unfit dog. Claimant has stated that she wanted to keep the dog. This meant that the relief she could obtain under the statute would be limited to the veterinary expenses incurred which could not exceed the purchase price. However, in order to prevail on that claim, the claimant needed to produce a certification that the dog was unfit by the veterinarian on a form as prescribed by the commissioner. Claimant has only produced a letter from the veterinarian on the veterinarian's note pad. Even if there is an excuse for not using the prescribed form, the letter does not contain the information required by the statute, "the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment." [*3]

Further, the claimant did not give the defendant the opportunity to have the dog examined by a veterinarian of the dealer-seller's choosing as permitted by GBL §753(4). In addition, this paragraph provides that after the dealer-seller has the animal examined and the parties cannot resolve the dispute, then the consumer-purchaser may commence an action in a court of competent jurisdiction. Defendant testified that she wanted to have the opportunity to have her veterinarian examine the dog and the claimant refused to cooperate.

Claimant has failed to provide any evidence that the defendant was given such an opportunity and they were unable to resolve the dispute or that the defendant rejected the opportunity to examine the dog. This leads to the conclusion that this litigation is to be dismissed because the claimant has failed to comply with the language of GBL Article 35-D.

In addition, the statute does not consider intestinal parasites to be grounds for declaring a pet unfit for sale (GBL§753(3)). The notes from claimant's veterinarian indicate a diagnosis of giardia (giardiasis), which is an intestinal parasite. This would prohibit the claimant from recovery unless it was established that the dog was clinically ill from the parasite. There is no proof of this status from the claimant.

Although the claimant cannot prevail on the breach of contract action, there are several problems with the contract from the defendant which give rise to a cause of action under General Business Law 349 which prohibits deceptive acts and practice in any business.

First, paragraph one of the contract states: "Return Policy: Purchaser shall within fourteen (14) days after purchase, have the above described puppy examined by any licensed veterinarian to validate this guarantee." The statute provides that the examination be within "fourteen business days following the sale." However, this statute does not define what is meant by a "business day." Traditionally the law has recognized that there is a difference between calendar days and business days. General Construction Law (GCL) §20 specifies how computation of a "day" is to be made. It states: A number of days specified as period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar from which reckoning is made. If such period is a period of two days, Saturday, Sunday or a public holiday must be excluded from the reckoning if it is an intervening day between the day from which the reckoning is made and the last day of the period. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.

Because the statute specifically refers to business days, it must be concluded that the [*4]legislature intended the time period to be something other than that set by the GCL. This being the case, by designating the time period as "business days" was it the legislature's intent to mean a shorter or longer time period? Does "business day" refer to the days that a particular business is open or to an industry standard and custom for a particular business? If an individual store is open seven days a week, does that make the calculation of "business days" mean seven consecutive days?

Perhaps the legislature has given us guidance in some other statute. General Construction Law-Newspapers-§60(b): The terms "daily newspaper" and "newspaper published each business day" in a statute, contract, or any public or private instrument, mean, respectively, a newspaper customarily published on each business day of the year, whether or not such newspaper is published on any other day. The term "business day" when used herein does not include Saturdays, Sundays or legal holidays.

General Business Law-Membership Campgrounds-§651(2): "Business day" means any calendar day except Sunday or any legal holiday.[FN2] General Obligations Law-Agreements required to be in writing-§5-701(3)(b): a "business day" for the purposes of this subparagraph is a day on which both parties are open and transacting business of the kind involved in that qualified financial contract which is the subject of the confirmation;

Personal Property Law-Door to Door Sales Protection Act-§426(6): "Business day"shall mean any calendar day except Sunday, or the following business holidays...."

Personal Property Law-Telephone Sales Protection Act-§441(7): "Business day" shall mean any calendar say except Sunday, or the following business holidays...." Real Property Law-Home equity theft prevention-§265-a(2)(b): "Business day" means any calendar day except Sunday or the holidays set forth in section twenty-four of the general construction law.[FN3][*5] Real Property Law-Distressed property consulting contracts-§265-b(1)(g): "Business day" shall mean any calendar day except Sunday or the holidays as set forth in section twenty-four of the general construction law.Tax Law-State directory of new hires-§171-h(2)( c): "business day" means a day on which state offices are open for business."

Because the legislature does not have a consistent definition of "business day," it must be concluded that the term has a particular meaning different from a non-business day whenever it is included in a statute. Therefore, the defendant's use of the language "fourteen (14) days from date of purchase" rather than the "fourteen business days" as set forth in the statute is a deceptive business practice in that it fails to properly advise the purchaser of the proper time limit in which to assert the right to have the pet examined by a veterinarian of their own choice. What it means in regard to this statute is not before the court because the claimant is not seeking to have the dog examined beyond fourteen business days of purchase.

There is another violation of GBL§753 by the defendant. The statute requires the pet dealer to refund or reimburse the purchaser "no later than ten business days following receipt of a signed veterinary certification as herein required" (GBL §753(2)). The contract from the defendant states that the defendant will deliver either a "credit" or "another puppy" either "immediately" or "no later than thirty (30) days." The statute requires the transaction be corrected within ten days and not thirty days.

The contract from defendant also requires that the customer's veterinary examination certification be delivered to the defendant within "twenty-four hours" of such examination. This statement is also a violation of the GBL. GBL §753(2) requires that such veterinary certification be presented to the pet dealer "no later than three business days following receipt thereof by the consumer."

Finally the contract from the defendant improperly limits the basis for return of the dog to "distemper, hepatitis, leptospirosis, or hard pad disease," the statute makes no such specific designations. The language of the statute permits a refund or return of the pet if a [*6]veterinarian certifies that animal is "unfit for purchase due to illness, a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease" (GBL §753(1)).

General Business Law §349(h) provides a civil remedy for persons adversely affected by a deceptive business practice. The statute permits recovery of "actual damages or fifty dollars, whichever is greater,...The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section."

The court finds that the differences between defendant's contract and the statutory requirements constitute a "deceptive act or practice" in the conduct of defendant's business.

Judgment for claimant in regard to defendant's violation of General Business Law §349. Because there are no actual damages due the claimant because of the discrepancies in defendant's contract, claimant is limited to the statutory damages only.

Judgment for claimant in the amount of $50.00, with interest from April 24, 2008 the date of the contract, costs and disbursements.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of this court.

Exhibits, if any, will be available at the office of the clerk of the court 30 days after receipt of a copy of this decision.

Dated: March 5, 2009

Staten Island, NYHON. PHILIP S. STRANIERE

Judge, Civil Court

[*7]ASN byon

Footnotes

Footnote 1:

This is obviously a typographical error. General Business Law §743 deals with the Automobile Broker Business and enforcement of Article 35-B by the attorney general. Although many people believe their motor vehicle is either a "dog" or "the cat's meow," I doubt if this is the correct reference.

Footnote 2: Although this section of the General Construction Law uses the terms "legal holiday," the GCL does not contain a definition of "legal holiday;" it only defines "public holiday" (GCL §24).

Footnote 3: It should be noted that there are twelve "public holidays" listed in GCL §24, which are three more than the "business holidays" listed in Personal Property Law§ 426(6) & §441(7).