Patitucci v Consumers Warehouse Ctr., Inc.

[*1] Patitucci v Consumers Warehouse Ctr., Inc. 2007 NY Slip Op 52288(U) [17 Misc 3d 136(A)] Decided on November 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1030 S C.

Joseph Patitucci, Appellant,

against

Consumers Warehouse Center, Inc. d/b/a Consumers Kitchen & Bath, Respondent.

Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated November 28, 2005. The judgment, after a nonjury trial, dismissed the action.

Judgment affirmed without costs.

Plaintiff commenced the instant small claims action seeking to recover the purchase price of kitchen cabinets ordered from defendant, alleging that the cabinets he received were either damaged or not what he ordered. Defendant had inspected the damage shortly after delivery, admitted that some of the cabinets had been damaged during shipping, and ordered replacement items. Plaintiff, however, refused tender of the replacement cabinets, as he did not like the interior construction of the cabinets. At trial, plaintiff testified that he had been under the impression that the sides and the backs of the cabinets would be made of wood, as the cabinet doors were, and not of pressed wood. He admitted, however, that he had not been specifically told by defendant that the cabinets would be entirely made of wood. The trial court determined that plaintiff was not entitled to recover because the cabinets which were delivered to plaintiff were in conformity with what was described in the sales order as "engineered wood" construction.

The standard of review on appeal of a small claims judgment is whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807). A small claims judgment may not be reversed absent a showing that there is no support in the record for the court's conclusions, or that the court's determination is otherwise [*2]so clearly erroneous as to deny substantial justice (see Forte v Bielecki, 118 AD2d 620 [1986]; see also Blair v Five Points Shopping Plaza, 51 AD2d 167 [1976]).

Goods are "conforming" or "conform to the contract" when they are in accordance with the obligations under the contract (UCC 2-106 [2]). Subject to certain exceptions, a purchaser may reject goods tendered by the seller where the goods "fail in any respect to conform to the contract" (UCC 2-601), and the nonconforming goods must be rejected "within a reasonable time after their delivery or tender" (UCC 2-602 [1]). Where a purchaser timely and "rightfully rejects" nonconforming goods, the purchaser is entitled to recover the purchase price, plus reasonable damages, where appropriate (UCC 2-711, 2-715). However, a seller may, pursuant to UCC 2-508, cure any improper tender and make a conforming tender.

To the extent that plaintiff contends on this appeal that the cabinets, including the replacement ones which were tendered pursuant to the seller's cure (UCC 2-508), were not what he ordered, and that he rightfully rejected them, the documentary proof belies that contention. Since the cabinets, in terms of their composition, did in fact "conform to the contract," they were not nonconforming goods and therefore there was no basis for plaintiff to reject them and recover their purchase price (UCC 2-601, 2-602, 2-711). Defendant did not make an affirmative representation that the cabinets would be constructed entirely of wood. Indeed, the documentation clearly states that the cabinets were of "engineered wood" construction. Consequently, we agree with the lower court's conclusion that the cabinets conformed to the contract and that plaintiff received what he contracted for.

In view of the foregoing, substantial justice was done between the parties, and the court below properly dismissed the action.

Rudolph, P.J., and McCabe, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the judgment and to award plaintiff the sum of $4,852.45 conditioned upon his return of the cabinets, in the following memorandum:

To render "substantial justice . . . between the parties according to the rules and principles of substantive law" (UDCA 1807), the judgment should be reversed and judgment entered in favor of plaintiff in the sum of $4,852.45, conditioned upon plaintiff's return of the cabinets.

The sales order which was generated after plaintiff made his initial order for the merchandise reads, in pertinent part:
"MATERIAL: CHERRY. . .
END CONSTRUCT. : ENGINEERED WOOD . . .
YOUR CABINETRY IS CONSTRUCTED USING MANY PIECES OF SOLID WOOD AND WOOD VENEERS. GRAINING DIFFERENCES AS WELL AS NORMAL COLOR [*3]CHANGE CAN BE EXPECTED."

Since the order form generally called for solid wood components, and the materials delivered consisted mainly of pressed wood, there was a substantial variance between the goods ordered and those delivered. Thus, plaintiff properly exercised his right to reject the cabinets as nonconforming (UCC 2-601, 2-602). Under the circumstances, he was entitled to recover the purchase price of $4,852.45 (UCC 2-711) conditioned upon his return of the cabinets to defendant (see UDCA 1805; Vandorn v Andersen, 11 Misc 3d 127[A], 2006 NY Slip Op 50240[U] [App Term, 9th & 10th Jud Dists]).

Moreover, even if the judgment is not reversed on the issue of liability, this action should be remanded for a trial on the issue of damages. The record describes the cabinets not as custom units but as stock components capable of being returned to inventory. Accordingly, on cancellation of the contract, defendant, in the required mitigation of damages, was entitled at most to a return of its property and an award of lost profit.
Decision Date: November 21, 2007