Dweyer v Montalbano's Pool & Patio Ctr., Inc.

[*1] Dweyer v Montalbano's Pool & Patio Ctr., Inc. 2005 NY Slip Op 52122(U) [10 Misc 3d 135(A)] Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ.
2004-566 RI C:

Brian K. Dweyer, Respondent,

against

Montalbano's Pool & Patio Center, Inc., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip Straniere, J.), entered March 1, 2004. The judgment awarded plaintiff the principal sum of $3,729.99.

Judgment modified by providing that the award in favor of plaintiff is reduced to the sum of $2,868.63 and that contemporaneous with the payment of said judgment, plaintiff shall return the furniture to defendant; as so modified, affirmed without costs.

Plaintiff commenced the instant small claims action to recover the sum of $2,868.63, the cost of patio furniture that he ordered from defendant which, he alleged, was not delivered according to his order. When the furniture set was initially delivered, in May of 2003, of the six chairs which had been ordered, one chair was missing and [*2]
one chair was damaged. Although one replacement chair was delivered to plaintiff during the next month, it did not match the other chairs in the set, and plaintiff timely notified defendant of said fact. Defendant did not order two matching chairs until December of 2003, after this action was commenced.

Although the court below relied in substantial part upon General Business Law § 396-u, which governs unlawful practices in delivery of furniture and other merchandise, the gravamen of plaintiff's complaint was not that the patio furniture was untimely delivered, but rather that the furniture did not conform to the contract. The issues in the instant case were, therefore, more appropriately resolved under Uniform Commercial Code principles. We find that plaintiff accepted the furniture upon the reasonable assumption that the non-conformity would be seasonably cured (see UCC 2-607 [2]). Inasmuch as the non-conformity was not seasonably cured, plaintiff was entitled to revoke his acceptance (see UCC 2-608 [1] [a]), and to recover the purchase price of
$2,868.63 (UCC 2-711 [1]). Accordingly, we modify the judgment of the court below, which awarded plaintiff the sum of $2,868.63 plus $861.36 in punitive damages under General Business Law § 396-u, by reducing the amount of the award to $2,868.63. In [*3]
addition, substantial justice requires that plaintiff return the patio furniture to defendant (see CCA 1805, 1807). We note that plaintiff does not seek any additional damages as allowed under UCC 2-711 (1).

Pesce, P.J., and Belen, J., concur.

Golia, J., taking no part.
Decision Date: December 15, 2005