Frey v Appliance City

[*1] Frey v Appliance City 2006 NY Slip Op 51291(U) [12 Misc 3d 138(A)] Decided on July 3, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1519 OR C.

Douglas Frey, Appellant,

against

Appliance City, Respondent.

Appeal from a judgment of the Justice Court of the Town of Wallkill, Orange County (Robert H. Freehill, J.), entered April 28, 2003. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and matter remanded for a new trial.

In this small claims action, plaintiff sought to recover payments he made to defendant for an allegedly damaged refrigerator, as well as amounts charged by a private plumbing company for transportation, installation and removal. He also sought additional miscellaneous amounts for lost work time. At trial, he claimed that upon delivery of the refrigerator, he saw that it was damaged, and he immediately notified defendant, which refused to remove it and refund the purchase price.

Where a purchaser timely rejects nonconforming goods, the purchaser is entitled to recover the purchase price, plus reasonable damages where appropriate (UCC 2-711, 2-715). Upon rejection, however, the purchaser may have to afford the seller an opportunity to cure within a reasonable time. UCC 2-508 (2) specifically provides that where a purchaser rejects nonconforming goods which the seller had reasonable grounds to believe would be acceptable, with or without money allowance, the seller may have a further reasonable time to substitute a conforming tender, if the seller timely notifies the buyer of its intention to substitute a conforming tender. The credible evidence at trial indicated that when defendant was notified that the refrigerator was damaged, plaintiff refused defendant's offer to exchange the damaged [*2]refrigerator. The record, however, is unclear as to whether said offer included the cost of delivery and pick-up.

Our review is limited to determining whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807). Since we are unable to determine from the record whether defendant's offer to cure was sufficient, in our opinion, substantial justice requires that the matter be remanded to the court below for a new trial.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 3, 2006