Cocuzza v Love My Dawg

[*1] Cocuzza v Love My Dawg 2018 NY Slip Op 51508(U) Decided on October 25, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ
2017-2239 N C

Michael Scott Cocuzza, Appellant,

against

Love My Dawg, Respondent.

Michael Scott Cocuzza, appellant pro se. Love My Dawg, respondent pro se (no brief filed).

Appeal from a judgment of the District Court of Nassau County, First District (Paul L. Meli, J.), entered September 1, 2017. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the principal sum of $3,323.91, alleging that defendant had sold him the wrong breed of dog. At a nonjury trial, plaintiff testified that he had contracted to purchase an English Bulldog from defendant for $3,323.91. About two months later, plaintiff began questioning whether the dog was an English Bulldog as opposed to a French Bulldog. He obtained a DNA test, which revealed that the dog was part French Bulldog and not a full English Bulldog. Plaintiff's witness, a veterinarian, also testified that the dog looked like a French Bulldog but that she was not qualified to determine a dog's breed. Defendant's owner testified that the information she had received from the breeder was that the dog was an English Bulldog and there was no question in her mind that the dog looked like an English Bulldog and not a French Bulldog. Following the trial, the District Court dismissed the action.

Dogs have been held to constitute goods within the meaning of section 2-105 of the Uniform Commercial Code, and defendant, a seller of dogs, is a merchant within the meaning of UCC 2-104 (1) (see Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). Plaintiff appears to be arguing that he suffered damages as a result of defendant having delivered a nonconforming tender, as the dog's breed allegedly did not conform to the contract. Section 2—714 (1) of the Uniform Commercial Code provides that, where the buyer has accepted goods and given notification, he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach, as determined in any manner which is reasonable. In addition, plaintiff may be arguing that defendant breached its express warranty pursuant to UCC 2-313 (1) and (2), and [*2]that he is therefore entitled to damages pursuant to UCC 2-714 (2).

Upon a review of the record, we find that plaintiff's evidence failed to establish that the dog was not a full English Bulldog. Although small claims courts are not bound by statutory provisions or rules of practice, procedure, pleading or evidence (see UDCA 1804), a small claims judgment may not stand on hearsay alone (see Levins v Bucholtz, 2 AD2d 351 [1956]). While the court erred in not admitting into evidence and considering the DNA results, such error was harmless, as plaintiff failed to introduce any other competent evidence to establish that the dog was not a full English Bulldog (see Zelnik v Bidermann Indus., U.S.A., 242 AD2d 227 [1997]; Levins v Bucholtz, 2 AD2d 351; Hudson House LLC v Pointdujour, 5 Misc 3d 136[A], 2005 NY Slip Op 51547[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]). In any event, even if plaintiff had established that the dog was not a full English Bulldog, which he had bargained for, plaintiff failed to establish his damages by means of any competent testimony.

As the judgment in this case provided the parties with substantial justice (see UDCA 1804, 1807]), the judgment is affirmed.

RUDERMAN, J.P., TOLBERT and BRANDS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2018