Hardenbergh v Schulder

[*1] Hardenbergh v Schulder 2009 NY Slip Op 52454(U) [25 Misc 3d 141(A)] Decided on December 1, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-544 Q C.

Richard J. Hardenbergh, Respondent,

against

Robin Schulder, Defendant, -and- IMPORTED QUALITY GUARD DOGS, INC., d/b/a BULLDOGS R US/YORKIES R US, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered June 25, 2008. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $2,307.37 as against defendant Imported Quality Guard Dogs, Inc., d/b/a Bulldogs R Us/Yorkies R Us.

ORDERED that the judgment, insofar as appealed from, is affirmed without costs.Plaintiff commenced the instant small claims action alleging, among other things, that the puppy he purchased from Imported Quality Guard Dogs, Inc., d/b/a Bulldogs R Us/Yorkies R Us (defendant) was not in good health at the time of sale. Plaintiff brought the puppy in for medical treatment shortly after the sale and sought to recover from defendant the veterinary expenses he had incurred in the amount of $2,307.37. After a nonjury trial, the Civil Court, inter alia, awarded plaintiff the sum of $2,307.37 as against defendant and the instant appeal by defendant ensued.

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

Since the puppy came within the definition of "goods" as set forth in UCC 2-105, and since defendant was a "merchant" within the meaning of UCC 2-104 (1), plaintiff was entitled to recover damages under a theory of breach of the implied warranty of merchantability (see UCC 2-314; Rossi v Puppy Boutique, 20 Misc 3d 132[A], 2008 NY Slip Op 51449[U] [App Term, 2d & 11th Jud Dists 2008]; Budd v Quinlan, 19 Misc 3d 66 [App Term, 9th & 10th Jud Dists 2008]; Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 9th & 10th Jud Dists 2007]; Saxton v Pets Warehouse, 180 Misc 2d 377 [App Term, 9th & 10th Jud Dists 1999]), and was not limited to pursuing his remedies under article 35-D of the General Business Law, governing the sale of dogs and cats (see General Business Law § 753 [5]). As the record demonstrates that defendant breached the implied warranty of merchantability, plaintiff was entitled to recover the resulting veterinary expenses (UCC 2-714, 2-715).

Accordingly, since substantial justice has been done between the parties according to the rules and principles of substantive law (CCA 1807), the judgment is affirmed. Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009