Mavridis v Classic Galleries

[*1] Mavridis v Classic Galleries 2005 NYSlipOp 51180(U) Decided on July 21, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-1029 S C

Perikles Mavridis, Appellant,

against

Classic Galleries, ALAN FROMKIN & JENNIFER FREITAG, Respondents.

Appeal by plaintiff from a small claims judgment of the District Court, Suffolk County (G. Murphy, J.), dated September 29, 2003, which, after trial, dismissed the action.

Judgment unanimously reversed without costs and matter remanded for a new trial before a different judge.
In this small claims action, plaintiff sought to recover his deposit of $1,800 for furniture which he rejected allegedly as having been misrepresented by defendant Classic Galleries' salesperson and as being damaged, and which he had returned to defendant Classic Galleries. Defendant Classic Galleries contended that the composition of the wood used in the furniture had not been misrepresented by its salesperson, and that the furniture was not damaged. It argued that since the furniture had been wrongfully rejected by plaintiff, it was entitled to retain plaintiff's deposit in accordance with the liquidated damages provision of the contract of sale.
It is not clear from the decision of the trial court whether that court addressed the issue of plaintiff's rejection of the furniture and, if so, whether plaintiff wrongfully rejected the furniture upon delivery (UCC 2-602). Moreover, the state of the record makes it impossible for this court to make that determination. Accordingly, the matter must be remanded for a new trial. Upon the new trial, in the event that the trial court decides that the furniture was wrongfully rejected by plaintiff, thereby breaching the contract of sale, it must determine whether the liquidated damages clause of the contract was grossly disproportionate to the loss and did not bear a reasonable relation to the amount of damages sustained (see Truck Rent-A-Center v Puritan Farms 2nd, 41 NY2d 420 [1977]; LeRoy v Sayers, 217 AD2d 63 [1995]). Should the clause be deemed void as a penalty (see UCC 2-718 [1]), the provisions of UCC 2-718 (2) (b) and (3) are then applicable.
Decision Date: July 21, 2005